CIV/P/2/2007
IN THE HIGH COURT OF LESOTHO
In the matter between:
MAHALA MOLAPO PETITIONER
and
HLONEPHO NTSEKHE 1ST RESPONDENT
KHOPOLO KUJOANE 2NDRESPONDENT
MALEFETSANE MABASO 3rd RESPONDENT
PAKALITHA 'MEKO 4th RESPONDENT
NEO RAMONTI 5th RESPONDENT
LEHLOHONOLO SEEMA 6th RESPONDENT
ALLIANCE OF CONGRESS PARTY 7th RESPONDENT
BASOTHO BATHO DEMOCRATIC PARTY 8th RESPONDENT
BASUTOLAND CONGRESS PARTY 9th RESPONDENT
BASOTHO DEMOCRATIC NATIONAL PARTY 10th RESPONDENT
BASOTHO NATIONAL PARTY 11th RESPONDENT
LESOTHO WORKERS PARTY 12th RESPONDENT
MAREMATLOU FREEDOM PARTY 13th RESPONDENT
NATIONAL INDEPENDENT PARTY 14th RESPONDENT
NEW LESOTHO FREEDOM PARTY 15th RESPONDENT
POPULAR FRONT FOR DEMOCRACY 16th RESPONDENT
INDEPENDENT ELECTORAL COMMISSION 17th RESPONDENT
2
ATTORNEY GENERAL 18th RESPONDENT
SPEAKER OF THE NATIONAL ASSEMBLY 19th RESPONDENT
LESOTHO CONGRESS FOR DEMOCRACY 20th RESPONDENT
JUDGMENT
CORAM:
Molai, J
Peete, J
Nomngcongo, J
(2nd OCTOBER, 2007)
MOLAI J
This election petition was disposed off on 8th August, 2007 when the court intimated that reasons would be filed in the due course. These are the reasons. On 23 rd March 2007 the petitioner herein filed, with the Registrar of the High Court, an election petition in which he petitioned the court for an order framed in the following terms:
"(a) Declaring the 1st Respondent not to have been validly elected.
(b) Costs of this petition.
(c) Further and/or alternative relief."
I shall return to the election petition, later in this judgment.
3
On 3rd May 2007, the petitioner, again, filed with the Registrar of the High Court a notice of motion in which he moved the court for an order, inter alia, directing that the presiding judges and/or any other permanent members of the High Court bench recuse themselves from adjudicating on the election petition. The application was opposed by 1st, 14th, 17th, 18th, 19th and 20th respondents. On 19th June 2007, the application for recusal was heard and dismissed with costs as per judgment dated 8th August 2007.
On 20th June 2007, the petitioner filed, with the Registrar of the High Court, yet another notice of motion in which he moved the court for an order directing, amongst others, a stay of the hearing of the election petition pending appeal against the decision of this court in the recusal application. 1st, 14th and 20th respondents intimated their intentions to oppose the application. Affidavits were duly filed by the parties. However, on 16th July 2007 and before the application for stay of the hearing of election petition pending appeal against the decision of this court in the recusal application, could be set down for hearing, the petitioner filed, with the Registrar of the High Court, a notice to withdraw the application for stay of the hearing of
4
election petition pending appeal against the decision of this court in the recusal application.
Now, returning to the election petition, it is significant to mention that the petition was opposed by 1st, 14th, 17th 18th 19th and 20th respondents. Affidavits were duly filed by the parties. On 18th July 2007 the petitioner filed, with the Registrar of the High Court, yet another notice in which he purported to unilaterally withdraw, this time, the election petition itself.
It is perhaps, necessary to mention that when the petitioner filed the notice to withdraw it, the election petition had already been set down for hearing and postponed on several occasions. On 3rd August 2007, the 17th respondent, therefore, filed with the Registrar of the High Court, notice of application to set aside the notice to unilaterally withdraw the election petition as being an irregular step of proceeding.
The election petition was finally set down for hearing on 8th August 2007. Mr. Phoofolo, for the petitioner, started his argument by conceding that when he filed notice to withdraw the application for stay of the hearing of election petition pending appeal against the decision of this court on the
5
recusal application, the petitioner ought to have tendered costs. He did not do so, Mr. Phoofolo submitted, therefore, that the notice to withdraw the application for stay of the hearing of election petition pending appeal against the decision of this court on the recusal application should be with costs. The respondents agreed with the submission made on behalf of the petitioner and the withdrawal of the application for stay of the hearing of the election petition pending the appeal against the decision of this court in the recusal application was, accordingly granted with costs.
As regards the petitioner's notice to withdraw the election petition, it is to be observed that the aspect of withdrawal of election petition is not provided for either in the National Assembly Election Act 1992 or the court of Disputed Returns (National Assembly Election Petition) Rules 1993. However, rule 19 of the latter Rules provides:
"19. The Rules of the High Court shall, so far as they may be applicable, apply to any matter for which provision is not made in these Rules."
Now, rule 43 (1) (a) of the High Court Rules 1980 provides:
6
"43 (1)(a) A person instituting any proceedings may, at any time before the mater has been set down and thereafter by consent of the parties or by leave of the court, withdraw such proceedings."
As stated, earlier in this judgment, at the time the notice to withdraw the election petition was filed, with the Registrar of the High Court, the election petition itself had already been set down for hearing and subsequently postponed on several occasions. That being the case, the petitioner ought to have obtained either the consent of the other parties or leave of the court before filing, with the Registrar of the High Court, the purported notice to withdraw the election petition. It is, however, common cause that the petitioner had obtained neither the consent of the other parties nor leave of the court before he purported to withdraw the election petition. The petitioner's purported notice to withdraw the election petition was, therefore, contrary to the provisions of rule 43 (1) (a) of the High Court Rules 1980 and, for that reason, an irregular court process.
In his argument, Mr. Phoofolo, for the petitioner, conceded that the petitioner's notice to withdraw the election petition was not in accordance with the provisions of rule 43 (1) (a) of the High Court Rules 1980 inasmuch as it was not made with the consent of the other parties or leave of the court.
7
The petitioner would, however ask the court to condone his late application for leave of court to withdraw the election petition.
Mr. Moiloa, for the 17th respondent, argued that, in an election petition, the court has a public duty to perform, for example, the Speaker of Parliament must be informed what the fate of the person who had been elected to Parliament is. For this reason, the petitioner cannot unilaterally withdraw election petition. In support of his argument Mr. Moiloa referred the court to the decision in Moketa vs Mochochoko and another CIV/APN/202/93 (unreported) where it was held, at page 2:
".................. an election petition may not be withdrawn without
leave of the court."
See also CIV/APN/182/93 Mathaba and 27 others vs Lephema and 28 others (unreported) where Cullinan C.J. (as he then was) writing the majority judgment had this to say, at page 18:
" I cannot but see, therefore, that withdrawal of election petition, whether or not set down for hearing, is a matter for the leave of the court."
8
In the result, Mr. Moiloa asked that the election petition be dismissed with costs. In their arguments Messrs Phafane and Motsieloa, for the respondents, told the court that they entirely associated themselves with all that had been said by Mr. Moiloa, in his argument.
The court was persuaded by the argument that, in the circumstances of this case, the petitioner could not, in law, withdraw the election petition. Consequently, condonation of the petitioner's late application for leave of court to withdraw the election petition
would serve no good purpose and was, accordingly refused.
The court then invited Mr. Phoofolo, for the petitioner, to lead evidence. He declined to do so. Likewise, no evidence was adduced by the respondents who submitted that the election petition should be dismissed with costs, on the ground that the petitioner had failed to adduce any evidence to substantiate it.
The salient question that then arose was whether or not the court could compel the petitioner or any of the respondents to give evidence. In the judgment of the court, the answer to that question was in the negative. The
9
court was supported in that regard by the decision in Molano vs Mohasoane and another CIV/APN/194/93 (unreported) where Cullinan, C.J. writing the majority judgment had this to say, at page 8:
"I do not see that it is in the interest of Justice that the court should be seen to force any party to an election petition into the witness box."
In the light of all the aforesaid, the court came to the conclusion that the election petition ought not to succeed and it was, accordingly, dismissed with costs.
B.K. MOLAI
JUDGE
I agree
S.N. PEETE
T. NOMNCGONGO
10
The order of the Court, therefore, was as follows:
The election petition number 2 of 2007 was dismissed with costs,
The first Respondent, Hlonepho Ntsekhe, was declared to have been validly elected as member of the National Assembly for
Thaba Phatsoa Constituency number 8.
B.k. MOLAI
JUDGE OF THE LESOTHO HIGH COURT
