HIGH COURT OF LESOTHO
NATIONAL EXECUTIVE COMMITTEE OF
BASUTOLAND AFRICAN CONGRESS 1st APPLICANT
BASUTOLAND AFRICAN CONGRESS 2nd APPLICANT
QHOBELA 1st RESPONDENT
'MOLOTSI KOLISANG 2nd RESPONDENT
MOSHOESHOE 3rd RESPONDENT
TUOANE 4th RESPONDENT
PEKECHE 5th RESPONDENT
KOTELO 6th RESPONDENT
MOEJANE 7th RESPONDENT
MONYALOTSA 8th RESPONDENT
JESSIE 9th RESPONDENT
PHAKISI 10th RESPONDENT
SEUTLOALI 11th RESPONDENT
MAKABANE 12th RESPONDENT
MAFANTIRI 13th RESPONDENT
GENERAL 14th RESPONDENT
GENERAL 15th RESPONDENT
by the Honourable Mr. Justice W.C.M. Maqutu On the 28th September
case was brought to me when I did not expect it, and it was not
listed on the roll.
came as a contempt of court application when I invited first
respondent to demonstrate the nature of contempt of court claimed,
reference had to be made to the minute written on the 24th November
2005. The court order was "Postponed sine die to enable
parties to talk. Costs to be costs in the cause".
soon became clear that there was no contempt of court committed.
What was clear was that the partied failed to agree. Nevertheless
the parties were anxious to have finality. The reason being that
there were two rival National Executive Committees of the Basutoland
African Congress. This is clearly intolerable. Therefore the matter
had to proceed.
the 16th March 2004, applicants who stand for the Basutoland African
Congress hereinafter called the BAC brought an application
the purported Annual General Conference of second applicant held on
5th-7th March 2004 at
instance of and/ or with the active initiative of first to thirteen
respondents as invalid, unconstitutional and of no force
the election of first to thirteen respondents as the National
Executive Committee of second applicant at the said purported
General Conference of second applicant on 5th -7th March 2004 as
invalid, unconstitutional and of no force and effect.
first to thirteen respondents from holding themselves out as the
duly elected National Executive Committee of second
from discharging any functions, duties and obligations as such
individually and/or collectively for and on behalf
the Annual General Conference of second applicant held on 27th -
29th February 2004 as the
legitimate, valid, constitutional and effectual Annual General
Conference of second applicant together with its resolutions,
and election of the National Executive Committee thereat.
fourteenth respondent to deregister and expunge from her official
records the purported revised constitutional amendments
Constitution of second applicant submitted and filed in her office
by first respondent on 9th April 2002 on the basis
that they were
not sanctioned and resolved upon by second applicant.
fourteenth respondent from accepting, registering and filing of
record any resolution and/or documents purporting
to be those of
applicants as submitted by first to thirteenth respondents
individually and/or collectively.
7. Directing first to thirteenth respondents to pay the costs hereof
on an Attorney and client scale jointly and severally, fourteenth
fifteenth respondents to pay such costs only in the event of their
opposing this application.
8. Granting applicants further and/or alternative relief.
5. On the 23rd March 2004, 1st to 13th respondents filed a Notice of
Intention to oppose.
6. This application was not treated as urgent. That is the reason it
is before me today - the 28th August 2006. Nevertheless it
then and is even more urgent today.
7. On the 6th April 2004, Tsie Pekeche the 5th respondent had filed
an Answering Affidavit in which he stated that at that stage,
challenging the locus standi of the people in the
Executive Committee of the BAC who brought the application on behalf
of the BAC.
crux of the case for the applicant is that apparently two factions
of 2nd applicant purported to hold a conference of the
applicant each at its own venue and on its own date; one between
27th and 29th February 2004, and another between 5th and
is common cause between the parties that these conferences were
held pursuant to the direction of this Honourable Court in
proceedings being CIV/APN/13/04 which direction stemmed from the
inability of this Honourable Court to resolve the
the parties on affidavits.
am advised, and verily believe same to be true and correct, that in
these circumstances representatives of the factions being
applicants herein are not entitled to have brought these
proceedings by way of Motion well knowing that the issue to be
determined by this Court is going to be which of the two
conferences is the conference held in terms of the Constitution of
2nd applicant and its decisions based thereon.
the outset, I must point out that this court was never unable to
resolve this factional dispute. The parties asked for
opportunity to negotiate and this was granted. The court is
reluctant to impose a solution in any dispute - if it can
it. If it has to make a decision, it will do so - as this is its
Pekeche continued: "The facts supporting each faction's case
are so irreconcilable as not to be resolved, to the
knowledge, on affidavit. In this regard I respectfully call attention
to the following, which are issues in dispute
between the parties:-
3.1. That the deponent 'Mamapele Hilda Chakela is the Secretary
General of the 2nd applicant.
3.2. That the 1st to 13th respondents are not, but only purport to
be, the National Executive Committee of the 2nd applicant.
3.3. That the 5th respondent wrongfully purports to be the Secretary
General of the 2nd applicant.
3.4. That the amendment of the 9th April 2002 to the Constitution of
the 2nd applicant was ever queried.
3.5. That the Special Conference of the 2nd applicant held on the
15th November, 2003 was a properly constituted conference; and
1st respondent's purported suspension was invalid.
3.6. That the court ordered applicants to arrange the Annual
Conference. It is the case for the respondents that the consent order
conference be convened by the body empowered by the Constitution to
3.7. That the conference arranged by Maholela Mandoro was duly
authorized to convene on the 27th to 28th February 2004. In
1st to 13th respondents will contend that the said Mandoro
issued two circulars; one convening the. conference for the 27th to
28th February, 2004 and another for 5th to 7th March, 2004.
3.8. That the conference for 5th to 7th March 2004 was convened by
the 1st to 13th respondents".
motion proceedings competent
Pekeche added: "I am advised, and I verily believe same to be
true and correct, that it is not competent for a litigant
institute proceedings by way of Motion in circumstances where the
whole dispute is riddled with disputes of such a fundamental
nature as above. Full argument will be addressed to court at the
fifth respondent was in fact doing was to object not only to the
locus standi of the first applicant National Executive
of the BAC but show that there is a serious dispute of fact. After
highlighting the fact that there are two rival
Committees of the BAC at paragraph 2.5 (b) of his affidavit fifth
"It is common cause between the parties that these conferences
were held pursuant to the direction of this Honourable Court
certain proceedings being CIV/APN/13/04 which direction stemmed from
the inability of this Honourable Court to resolve the dispute
the parties on affidavits".
At the outset I have to point out that courts are not meant to
resolve internal disputes within political parties and voluntary
organizations. Courts do so as the last resort. These are strictly
domestic matters which should be resolved internally in
their constitutions. That is the essence of democracy. Court only
help to maintain law and order
and to ensure that constitutions are followed and the rights of each
and every member in these organizations are not infringed.
Ntlhoki for the applicants handed to me Mr. Justice G.N.Mofolo's
Order dated 21st January 2004 in CIV/APN/13/2004 which
HIS LORDSHIP MR. JUSTICE G.N. MOFOLO,
THE HIGH COURT
WEDNESDAY 21ST JANUARY 2004
NTLHOKI FOR APPLICANTS
MAPETJA FOR RESPONDENTS
heard Counsel for the parties
CONSENT IT IS ORDERED THAT:-
Basutoland African Congress Annual General Conference scheduled
for 23rd - 25th January 2004 is postponed;
Basutoland African Congress Annual General Conference will be held
not later than the first week of March 2004;
said Annual General Conference will be arranged in accordance with
the Constitution of the Basutoland African Congress;
party to bear its own costs.
14. It is clear from this order that Mofolo J never authorized the
two factions to hold rival conferences.
15. In fact CIV/APN/69/2004 was brought by the rival National
Executive Committee of the BAC - of which 5th respondent Tsie Pekeche
is a member. What 5th respondent was asking the court for is neatly
summarized by Mofolo J in this judgment of the 2nd day of March
What surprises me is that 5th respondent does not refer to this
judgment. Fifth respondent in this application acts as if
CIV/APN/69/04 does not exist yet 5th respondent deposed
founding affidavit. This puzzles me even more because CIV/APN/69/2004
was brought to show Maholela Mandoro who belonged to
the rival BAC
National Executive Committee of the BAC had no authority to convene
an Annual General Conference of the BAC. On page
6 of his judgment in
CIV/APN/69/2004 Mofolo J said "This application was launched on
the 27th February 2004 - it being claimed
that the conference was to
be held on 5-7 March 2004". It seems to me clear that Mofolo J's
judgment was saying fifth and
first respondents should not hold that
16. At pages 2 and 3 of his judgment of 2nd March 2004 Mofolo J shows
5th respondent and his faction of which 1st respondent Molapo
is the leader - as claiming.
That a rule nisi issue calling upon the respondent to show cause on a
date to be determined by this Honourable Court why the following
Order shall not be made a final Court Order.
the respondent from issuing any notice whatsoever in connection
with the Annual Conference of the 2nd applicant
due to be held not
later than the first week of March, 2004 in accordance with an
Order of this Court in CIV/APN/13/04 as he
has no mandate of the
1st respondent, pending finalization of this application;
the respondent from making any preparation in connection with the
Annual Conference of the 2nd respondent due to
be held not later
than the first week of March, 2004 in accordance with an Order of
this Court in CIV/APN/13/04 as he has no
mandate from the 1st
applicant pending finalization of this application;
as null and void and of no constitutional force and effect
letter dated 19th January, 2004 regarding the Annual Conference of
the 2nd applicant due to be held not later than the
first week of
March, 2004 in accordance with an order of this court in
Mofolo J in his judgment in CIV/APN/69/2004 at page 11 noted that
Molapo Qhobela (who is first respondent) had been suspended
fact was conceded. According to Mofolo J:-
"In an earlier application before me (CIV/APN/13/04), it was
conceded on behalf of the leader Molapo Qhobela that he had been
suspended and the reason for calling the conference to challenge the
suspension and rectify the situation".
Mr. Nteso in his argument alleged that it was the rival members of
the National Executive Committee that had been suspended
Qhobela - the first respondent. Fifth
respondents cannot say this today, and tomorrow say a different
thing. On page 11 of his judgment Mofolo J says of 1st respondent
Molapo Qhobela, the leader and 5th respondent, the Deputy Secretary
General the following: -
"Both the leader and Deputy Secretary were shorn of their powers
by resolution of 15th November 2003. Despite this, both the
leader and his Deputy Secretary put on a brave face pretending their
powers are in place. It is a stance a court - well
short even in this application, fifth respondent and first respondent
through sheer obstinacy were ignoring what Mofolo J
said in his
judgment of 2nd March 2004 and creating a dispute of fact out of
issues already settled by the court. 1st and 5th respondents
knew when they held the conference on the 5th and 7th March 2004 that
they had been (to put this in Mofolo J's words) "shorn
powers by resolution of 15th November 2003. Despite this, both the
leader and Deputy Secretary put on a brave face pretending their
powers are in place".
the 25th November 2005, this matter had been before me. The minute
that I wrote that day is the following:-
"On 24/11/2005 matter argued and Mr. Ntlhoki heard. Mr. Metlae
(for respondents) partially heard. After tea-break Mr. Metlae
suggests he should only argue Mr. Qhobela's position in prayer 8 of
the counter-application. Court suggests this cannot work -
parties should talk. Both Mr. Ntlhoki and Mr. Metlae agree to talk.
Court: postponed sine die to enable parties to talk.
Costs to be
costs in the cause".
court understood Mr. Metlae to be conceding that the conference had
been wrongfully held by Mr. Molapo Qhobela's faction.
Mr. Metlae was offering to argue the counter application setting
aside Mr. Molapo Qhobela's suspension. The court
was hoping for a
and reconciliation. It was clear that Mofolo J had shown clearly that
the leader Molapo Qhobela could not act for the
2nd applicant the
Basutoland African Congress (BAC) and could not interfere with the
functions of Maholela Mandoro the first respondent
as Secretary General. I quote the relevant passages in Mofolo J's
"In the instant application I have not been appraised of such
terms of agreement between complainant and the Basutoland
Party. Be that as it may, I am of the view that until the suspended
leader Molapo Qhobela has moved somehow to have the
against him lifted or removed his right to be heard or make
representations concerning 2nd applicant (BAC) or in any
interfering with the functions of first respondent cannot succeed or
be entertained by this court".
"At the time of launching this application there has been no
rectification of Mr. Molapo Qhobela's
for the suspension had neither been lifted nor set aside, I fail to
see how, in the present application, since the status
quo remains the
same, the application can succeed.
"It follows that whatever document Mr. Qhobela and Mr. Pekeche
signed in these proceedings is a nullity".
Mofolo J concluded his judgment in CIV/APN/69/04 by saying:-
"This application has not succeeded for the reason that the
leader Mr. Molapo Qhobela and his Deputy Secretary Mr. Pekeche
mandate or power to act as they did for, evidently, there cannot be
two bulls in one kraal lest they kill each other. It
is for these
reasons that the application was dismissed.
costs, Mr. Ntlhoki has urged the court to award costs on a higher
scale to show the court's displeasure of
the contemptuous and defiant attitude of, in particular, the
suspended leader Mr. Molapo Qhobela. While it is true that Mr.
attitude does not inspire respect for lawful structures, in
some respects applicants have been more or less successful".
Besides, in CIV/APN/69/2004 - although the respondent is largely
successful, Mofolo J was not particularly happy with the approach
adopted in that application. Accordingly, Mofolo J said costs will be
costs as between party and party, and on an ordinary scale.
the 22nd April 2005, Mr. Ntlhoki, Counsel for applicants brought an
application for the striking out 5th respondent's affidavit
objected to the locus standi of applicant and the manner applicant's
application was brought. On the 10th May 2005, this application
strike out was postponed. It has never been heard. I have already
said in view of Mofolo J's judgment in CIV/APN/69/2004, first
were trying to manufacture a dispute of fact where none exists.
the 25th January 2005, respondents filed a counter-application
against the rival National Executive Committee, the first
in the application in convention. They styled themselves 1st
applicant, instead of 1st applicant in reconvention. I will
this minor oversight of the rival committee because it did not
will be observed that Mofolo J was faced with an urgent application
in CIV/APN/69/2004 brought by the first and fifth respondents'
faction of the BAG. According to Mofolo J CIV/APN/69/2004 "was
launched on the 29th February 2004 -it being claimed that the
conference was to be held on 5-7 March 2004". He dealt with this
application and dismissed it on the 2nd March 2004 because
urgent treatment. Yet fifth and first respondents and their faction
still held the
they had been told unambiguously by Mofolo J, that they had no power
or authority to hold.
question that instantly came to my mind was whether first respondent
Molapo Qhobela and fifth respondent Tsie Pekeche who
could still sue first respondent Maholela Mandoro the rival Secretary
General and his Committee after Mofolo J's
decision in CIV/APN/69/04.
This is particularly so because Mofolo J said:-
follows that whatever document Mr. Qhobela and Mr. Pekeche signed in
these proceedings is a nullity".
application has not succeeded for the reason that the leader Mr.
Qhobela and his Deputy Secretary Mr. Pekeche had
no mandate or power
to act as they did".
essentials of a plea in bar of legal proceedings known as res
judicata are the following:-
prior action must have been between the same parties or their
prior action concerned the same subject-matter.
prior action must be founded on the same cause of action".
Beck's Theory and Principles of Pleadings in Civil Actions 5th
succinctly says there is no room for res judicata
"unless a suit which had been brought to an end is set in motion
afresh between the same persons about the same matter and
cause for claiming, so that the exception falls away if one of these
three things is lacking".
Dealing with a similar situation Goldstone J in Union & SWA
Insurance Co Ltd v Hoosen 1982 (2) SA 481 at 482 H said:-
matter was argued on the merits. In these circumstances it seems to
me that it would be futile to put the parties to the
expense of requiring a formal special plea to be filed and reargued".
Consequently the application was dismissed.
a competent court has made a judgment on an issue between the same
parties on the same subject matter the enquiry is not
judgment is right or wrong. If it has not been challenged - thereby
becoming final - it must be respected and given
effect to. - African
Farms & Township Ltd v Cape Town Municipality 1963 (2) SA 564. It
is regarded as an abuse of the court
process which is also vexatious
to try and get a matter retried on an issue already decided by acting
or pretending it is different
Loesh v Crowther (2) 1947 (3) SA 253.
In other words there is estoppel on the issue once the
made a final judgment on it. The presumption is that an earlier
judgment is correct and may not be challenged.
and fifth respondents are the same parties in CIV/APN/69/04, the
issue is the right to act for BAC and the cause of action
interdicting the rival National Executive Committee from acting for
the BAC and declaring the conference they held a nullity.
virtually what they were before court in CIV/APN/69/04 for - and what
they are before court today for. In that application
first and fifth
respondents were trying to or interdict the Secretary General
Maholela Mandoro from issuing the notices for the
holding of the
General Conference. The court refused to grant their application -
consequently the General Conference was held
on the 27th to 29th
court has a duty to stop or prevent a specific abuse of court
process. First defendant and fifth defendant seem not to
that a judgment of one judge between the same parties, on the same
subject matter binds other judges of the
court. A litigant is entitled to plead res judicata against a
repeated claim once an issue has been determined by the court.
is why I was surprised to find first and fifth respondents bringing a
counter claim when this court had already told fifth
respondents that Molapo Qhobela had been suspended as leader of the
BAC. Consequently until that suspension had been
respondent Molapo Qhobela had no authority in the BAC. It was for
that reason that their interdict against Maholela
Secretary General failed in CIV/APN/69/04. In view of Mofolo J's
judgment, this counter application ought not to have
Mofolo J has crisply said unambiguously stated that there cannot be
two bulls in one kraal. His meaning was that
there cannot be two
executive committees of the BAC.
Prayer 8 dealing with first respondent's suspension cannot be brought
in these proceedings when he has gone against a clear
Mofolo J, and with fifth respondent held an annual conference as if
he was not suspended. It is clear that on the issue
of first and
fifth respondents in the
CIV/APN/69/2004 overrides the order in CIV/APN/13/04 which was
actually referred to in CIV/APN/69/2004. 1st and 5th respondents
cannot wish away CIV/APN/69/2004 or pretend not to know of it because
it was brought by them. They have to accept it, bitter as
it might be
Ntlhoki in his heads of argument relies on Ramodibedi's judgment in
CIV/APN/205/99 T. Makhakhe & Ors v Molapo Qhobela.
In that case,
first respondent Molapo Qhobela was involved in a case in which there
were two rival executive committees - each
of which was arranging
conferences on different dates. Ramodibedi J found against Molapo
Qhobela's faction on this issue of self-help.
First respondent has
repeated the same thing after failing in CIV/APN/69/2004 in respect
of the BAC.
Nteso relied on CIV/APN/13/2004 although this judgment had clearly
been in the court's mind in
when Mofolo J made the adverse orders against these respondents. That
judgment binds me.
are a series of cases involving first respondent in which he was
helping himself with his faction in the Basutoland Congress
Makhakhe & Ors v Molapo Qhobela & Ors
Molapo Qhobela CIV/APN/410/99
Area NO.31 v Molapo Qhobela
Molapo Qhobela v BCP & Another 1999-2000 LLR & LB 243 at 253
Leon JA warned first respondent against taking the law
into his hands
when he was dissatisfied but rather to seek relief from the courts.
It is not the first time that this court advised
1st respondent to
take legal action timeously when his rights are infringed. He has not
done so in this case he has caused a rival
general conference to be
convened and ignored
suspension. The same advice had previously been given by this court
in Stadium Area NO,31 Constituency v Molapo Qhobela CIV/APN/340/2000.
the circumstances of this case, the above decided cases are ad
hominem in respect of first respondent they are not merely
illustrating a principle as usually happens when past judgments are
cited. This is a matter of considerable regret - this should
first respondent think.
have no option but to grant the application of applicants against
first respondent Molapo Qhobela and his faction as prayed
dismiss the counter-application with costs.
court orders that:-
1. It is
declared that the purported Annual General Conference of second
applicant held on 5th - 7th March 2004 at the instance
of and/or with
initiative of first to thirteenth respondents is invalid,
unconstitutional and of no force and effect;
2. It is
declared that the election of first to thirteenth respondents as the
National Executive Committee of second applicant at
purported Annual General Conference of second applicant on 5th - 7th
March 2004 is invalid, unconstitutional and of no
force and effect;
to thirteenth respondents are interdicted from holding themselves out
as the duly elected National Executive Committee
of second applicant
and they are interdicted from discharging any functions, duties and
obligations as such individually and/or
collectively for and on
behalf of applicants herein;
4. It is
declared that the Annual General Conference of second applicant held
on 27th - 29th February 2004 is the only legitimate,
Annual General Conference of second applicant together with its
resolutions, actions and election of the National Executive
Fourteenth respondent is directed to deregister and expunge from her
official records the purported revised constitutional amendments
the Constitution of second applicant submitted and filed in her
office by first respondent on 9th April 2002 on the basis that
were not sanctioned and resolved upon by second applicant;
Fourteenth respondent is restrained from accepting, registering and
filing of records any resolution and/or documents purporting
those of applicants submitted by first to thirteenth respondents
individually and/or collectively;
to thirteenth respondents are directed to pay the costs hereof as
Applicants : Mr. Ntlhoki
Respondents : Mr. Nteso
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