CIV/APN/121/2004
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
THE NATIONAL EXECUTIVE COMMITTEE OF
THE BASUTOLAND AFRICAN CONGRESS 1st APPLICANT
THE BASUTOLAND AFRICAN CONGRESS 2nd APPLICANT
AND
MOLAPO QHOBELA 1st RESPONDENT
GODFREY 'MOLOTSI KOLISANG 2nd RESPONDENT
KHOTSANG MOSHOESHOE 3rd RESPONDENT
LETUKA TUOANE 4th RESPONDENT
TSIE PEKECHE 5th RESPONDENT
TOKONYE KOTELO 6th RESPONDENT
PEO MOEJANE 7th RESPONDENT
NKHETSE MONYALOTSA 8th RESPONDENT
MATHUNYA JESSIE 9th RESPONDENT
RALIOTLO PHAKISI 10th RESPONDENT
MAKHEMA SEUTLOALI 11th RESPONDENT
MABULA MAKABANE 12th RESPONDENT
PITSO MAFANTIRI 13th RESPONDENT
REGISTRAR GENERAL 14th RESPONDENT
ATTORNEY GENERAL 15th RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice W.C.M. Maqutu On the 28th September 2006
This case was brought to me when I did not expect it, and it was not listed on the roll.
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It 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 the parties to talk. Costs to be costs in the cause".
It 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.
On the 16th March 2004, applicants who stand for the Basutoland African Congress hereinafter called the BAC brought an application for the following orders:-
Declaring the purported Annual General Conference of second applicant held on 5th-7th March 2004 at
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the instance of and/ or with the active initiative of first to thirteen respondents as invalid, unconstitutional and of no force and effect.
Declaring the election of first to thirteen respondents as the National Executive Committee of second applicant at the said purported Annual General Conference of second applicant on 5th -7th March 2004 as invalid, unconstitutional and of no force and effect.
Interdicting first to thirteen respondents from holding themselves out as the duly elected National Executive Committee of second applicant and from discharging any functions, duties and obligations as such individually and/or collectively for and on behalf of applicants herein.
Declaring the Annual General Conference of second applicant held on 27th - 29th February 2004 as the
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only legitimate, valid, constitutional and effectual Annual General Conference of second applicant together with its resolutions, actions and election of the National Executive Committee thereat.
Directing fourteenth respondent to deregister and expunge from her official records the purported revised constitutional amendments of the 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.
Interdicting 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.
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7. Directing first to thirteenth respondents to pay the costs hereof on an Attorney and client scale jointly and severally, fourteenth and 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 was urgent 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, he was challenging the locus standi of the people in the
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National Executive Committee of the BAC who brought the application on behalf of the BAC.
The crux of the case for the applicant is that apparently two factions of 2nd applicant purported to hold a conference of the 2nd applicant each at its own venue and on its own date; one between 27th and 29th February 2004, and another between 5th and 7th March 2004.
It is common cause between the parties that these conferences were held pursuant to the direction of this Honourable Court in certain proceedings being CIV/APN/13/04 which direction stemmed from the inability of this Honourable Court to resolve the dispute between the parties on affidavits.
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I 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.
At the outset, I must point out that this court was never unable to resolve this factional dispute. The parties asked for an opportunity to negotiate and this was granted. The court is reluctant to impose a solution in any dispute - if it can avoid it. If it has to make a decision, it will do so - as this is its duty.
Mr. Pekeche continued: "The facts supporting each faction's case are so irreconcilable as not to be resolved, to the
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applicant's 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 that 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
directed that
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such conference be convened by the body empowered by the Constitution to do so.
3.7. That the conference arranged by Maholela Mandoro was duly authorized to convene on the 27th to 28th February 2004. In particular 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".
When motion proceedings competent
Mr. Pekeche added: "I am advised, and I verily believe same to be true and correct, that it is not competent for a litigant to 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 hearing hereof.
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What fifth respondent was in fact doing was to object not only to the locus standi of the first applicant National Executive Committee of the BAC but show that there is a serious dispute of fact. After highlighting the fact that there are two rival National Executive Committees of the BAC at paragraph 2.5 (b) of his affidavit fifth respondent says:-
"It is common cause between the parties that these conferences were held pursuant to the direction of this Honourable Court in certain proceedings being CIV/APN/13/04 which direction stemmed from the inability of this Honourable Court to resolve the dispute between 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 terms of their constitutions. That is the essence of democracy. Court only help to maintain law and order
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generally and to ensure that constitutions are followed and the rights of each and every member in these organizations are not infringed.
13. Mr. Ntlhoki for the applicants handed to me Mr. Justice G.N.Mofolo's Order dated 21st January 2004 in CIV/APN/13/2004 which states the following: -
ORDER OF COURT
BEFORE HIS LORDSHIP MR. JUSTICE G.N. MOFOLO,
JUDGE OF THE HIGH COURT
ON WEDNESDAY 21ST JANUARY 2004
MR. NTLHOKI FOR APPLICANTS
MR. MAPETJA FOR RESPONDENTS
Having heard Counsel for the parties
BY CONSENT IT IS ORDERED THAT:-
The Basutoland African Congress Annual General Conference scheduled for 23rd - 25th January 2004 is postponed;
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The Basutoland African Congress Annual General Conference will be held not later than the first week of March 2004;
The said Annual General Conference will be arranged in accordance with the Constitution of the Basutoland African Congress;
Each 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 2004. What surprises me is that 5th respondent does not refer to this judgment. Fifth respondent in this application acts as if the CIV/APN/69/04 does not exist yet 5th respondent deposed
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to its 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 conference.
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 Qhobela 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.
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Interdicting 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;
Interdicting 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;
Declaring as null and void and of no constitutional force and effect respondent's
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circular 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 CIV/APN/13/04.
17. Mofolo J in his judgment in CIV/APN/69/2004 at page 11 noted that Molapo Qhobela (who is first respondent) had been suspended and this 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".
18. Yet Mr. Nteso in his argument alleged that it was the rival members of the National Executive Committee that had been suspended not Molapo Qhobela - the first respondent. Fifth
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and 1st 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 suspended leader and his Deputy Secretary put on a brave face pretending their powers are in place. It is a stance a court - well instructed cannot tolerate".
19. In 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 already 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 of their powers by resolution of 15th November 2003. Despite this, both the
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suspended leader and Deputy Secretary put on a brave face pretending their powers are in place".
20. On 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 - rather 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".
21. The court understood Mr. Metlae to be conceding that the conference had been wrongfully held by Mr. Molapo Qhobela's faction. Consequently, Mr. Metlae was offering to argue the counter application setting aside Mr. Molapo Qhobela's suspension. The court was hoping for a comprehensive
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settlement 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 in CIV/APN/69/04 as Secretary General. I quote the relevant passages in Mofolo J's judgment:-
Page 9. "In the instant application I have not been appraised of such terms of agreement between complainant and the Basutoland Congress Party. Be that as it may, I am of the view that until the suspended leader Molapo Qhobela has moved somehow to have the suspension against him lifted or removed his right to be heard or make representations concerning 2nd applicant (BAC) or in any way interfering with the functions of first respondent cannot succeed or be entertained by this court".
Page 11. "At the time of launching this application there has been no rectification of Mr. Molapo Qhobela's
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suspension, 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.
Page 13. "It follows that whatever document Mr. Qhobela and Mr. Pekeche signed in these proceedings is a nullity".
22. 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 had no 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.
As to costs, Mr. Ntlhoki has urged the court to award costs on a higher scale to show the court's displeasure of
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the contemptuous and defiant attitude of, in particular, the suspended leader Mr. Molapo Qhobela. While it is true that Mr. Qhobela's attitude does not inspire respect for lawful structures, in some respects applicants have been more or less successful".
23. 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.
24. On the 22nd April 2005, Mr. Ntlhoki, Counsel for applicants brought an application for the striking out 5th respondent's affidavit that objected to the locus standi of applicant and the manner applicant's application was brought. On the 10th May 2005, this application to 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 and 5th
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respondents were trying to manufacture a dispute of fact where none exists.
Res Judicata
25. On the 25th January 2005, respondents filed a counter-application against the rival National Executive Committee, the first applicant in the application in convention. They styled themselves 1st applicant, instead of 1st applicant in reconvention. I will ignore this minor oversight of the rival committee because it did not confuse me.
26, It 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 it merited urgent treatment. Yet fifth and first respondents and their faction still held the
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conference they had been told unambiguously by Mofolo J, that they had no power or authority to hold.
27. The question that instantly came to my mind was whether first respondent Molapo Qhobela and fifth respondent Tsie Pekeche who were applicants 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:-
(1) "It follows that whatever document Mr. Qhobela and Mr. Pekeche signed in these proceedings is a nullity".
(2) "This 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".
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28. The essentials of a plea in bar of legal proceedings known as res judicata are the following:-
The prior action must have been between the same parties or their privies.
The prior action concerned the same subject-matter.
The prior action must be founded on the same cause of action".
- Isaacs Beck's Theory and Principles of Pleadings in Civil Actions 5th Edition page
164 (78).
Voet 44.2 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 on same cause for claiming, so that the exception falls away if one of these three things is lacking".
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29. Dealing with a similar situation Goldstone J in Union & SWA Insurance Co Ltd v Hoosen 1982 (2) SA 481 at 482 H said:-
"The matter was argued on the merits. In these circumstances it seems to me that it would be futile to put the parties to the trouble and expense of requiring a formal special plea to be filed and reargued". Consequently the application was dismissed.
30. When a competent court has made a judgment on an issue between the same parties on the same subject matter the enquiry is not whether that 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
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court has made a final judgment on it. The presumption is that an earlier judgment is correct and may not be challenged.
31. First 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 is interdicting the rival National Executive Committee from acting for the BAC and declaring the conference they held a nullity. This was 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 February 2004.
32. This court has a duty to stop or prevent a specific abuse of court process. First defendant and fifth defendant seem not to be aware that a judgment of one judge between the same parties, on the same subject matter binds other judges of the
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same court. A litigant is entitled to plead res judicata against a repeated claim once an issue has been determined by the court. That is why I was surprised to find first and fifth respondents bringing a counter claim when this court had already told fifth and first respondents that Molapo Qhobela had been suspended as leader of the BAC. Consequently until that suspension had been lifted first respondent Molapo Qhobela had no authority in the BAC. It was for that reason that their interdict against Maholela Mandoro, the Secretary General failed in CIV/APN/69/04. In view of Mofolo J's judgment, this counter application ought not to have been brought. 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.
33. Prayer 8 dealing with first respondent's suspension cannot be brought in these proceedings when he has gone against a clear judgment of 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
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BAC, 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 to them.
34. Mr. 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.
35. Mr. Nteso relied on CIV/APN/13/2004 although this judgment had clearly been in the court's mind in
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CIV/APN/69/2004 when Mofolo J made the adverse orders against these respondents. That judgment binds me.
36. There are a series of cases involving first respondent in which he was helping himself with his faction in the Basutoland Congress Party. These are:-
T. Makhakhe & Ors v Molapo Qhobela & Ors
CIV/APN/168/99
BCP v Molapo Qhobela CIV/APN/410/99
Stadium Area NO.31 v Molapo Qhobela
CIV/APN/340/2000
37. In 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
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his suspension. The same advice had previously been given by this court in Stadium Area NO,31 Constituency v Molapo Qhobela CIV/APN/340/2000.
38. In 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 make first respondent think.
39. I have no option but to grant the application of applicants against first respondent Molapo Qhobela and his faction as prayed and to dismiss the counter-application with costs.
40. This 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 the
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active 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 the said purported Annual General Conference of second applicant on 5th - 7th March 2004 is invalid, unconstitutional and of no force and effect;
3. First 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, valid, constitutional and
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effectual Annual General Conference of second applicant together with its resolutions, actions and election of the National Executive Committee thereat;
5. Fourteenth respondent is directed to deregister and expunge from her official records the purported revised constitutional amendments of the 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;
6. Fourteenth respondent is restrained from accepting, registering and filing of records any resolution and/or documents purporting to be those of applicants submitted by first to thirteenth respondents individually and/or collectively;
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7. First to thirteenth respondents are directed to pay the costs hereof as already stated.
W.C.M. MAQUTU
JUDGE
For Applicants : Mr. Ntlhoki
For Respondents : Mr. Nteso
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