CIV/APN/116/07
IN THE HIGH COURT OF LESOTHO
In the matter between:-MAREMATLOU FREEDOM PARTY APPLICANT
and
THE INDEPENDENT ELECTORAL
COMMISSION AND OTHERS RESPONDENTS
JUDGMENT
(Ex Tempore)
CORAM : HON. JUSTICE S.N. PEETE
HON, JUSTICE A.M. HLAJOANE
HON. JUSTICE M. MAHASE
DATE : 18th OCTOBER 2007
1. A Historical Background
The application — an election petition - being sought to be withdrawn by the applicant — Marematlou Freedom Party - was first lodged in the office of the Registrar on the 9th March 2007.
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2. It is common cause that General Elections were held throughout Lesotho on the 17th February 2007 and it is the proportional division or allocation of certain Parliamentary seats that was being challenged as being unconstitutional and improperly distributed by the 1st Respondent.
Notice of Motion
3. The notice of motion prayed as follows:-
"TAKE NOTICE THAT MPHOSI MATETE (hereinafter called the Petitioner) intends to petition the above Honourable Court for an
order.
declaring as unconstitutional and invalid the final allocation of seats in the National Assembly by the First Respondent following the 2007 Elections;
declaring as constitutional and invalid the alliance between the LESOTHO CONGRESS FOR DEMOCRACY (LCD) and the NATIONAL INDEPENDENT PARTY (NIP) to contest the 2007 Elections as a single entity (Party) for purposes of allocation of seats in a mixed member proportional
representation in the National Assembly;
declaring as unconstitutional and invalid the alliance between the ALL BASOTHO CONVENTION (ABC) and the LESOTHO WORKERS PARTY (LWP) to contest the 2007 Elections a single entity for purposes of allocation of seats in mixed member proportional representation in the National Assembly;
following the declarations in (a), (b) and (c) above, directing First Respondent to re-allocate the seats in the National Assembly in accordance with the Formula provided for in
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Schedule 5 of the National Assembly (NO.1) (Amendment) Act No.16 of 2001;
directing First Respondent to pay the costs hereof and any other Respondents to pay such costs in the event of opposing this petition;"
This is in fact the claim that is being sought to be withdrawn.
4. It is also common cause that in terms of the relevant provisions1, the Chief Justice fixed the 23rd April 2007 for the hearing of this election petition by a Panel consisting of Justices Peete, Hlajoane and Mahase.
5. An argument was made by Mr Ntlhoki that this date of hearing was also improper in that the applicant had not been given seven days before the date of hearing; he conceded however that on the 23rd April 2007, he raised no objection on this clear impropriety; nor did he do so on subsequent court appearances, [see para 28 (infra for text].
6. In our view, the applicant clearly waived his clear right in failing to object to the matter being heard on the 23rd April 2007.
1 The Court of Disputed Returns (National Assembly Election Petition) Rules 1993 - Legal Notice 54 Section 104 of the National Assembly Election Order No. 10 of 1992.
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7. After several unavoidable postponements, the matter was set down for hearing on the 2nd and 3rd July 2007 - a Monday and Tuesday of the first week of July. The notice of set down for this hearing was dated 15th 2007 giving applicant an ample notice period of almost two months before the hearing of the election petition.
8. The court record shows that on the 29 June 2007, the applicant had filed an urgent application seeking the recusal of the three
Justices of the Panel. This was an important application on its own.
9. On Monday 2nd July 2007 the urgent recusal application was formally moved by Mr Ntlhoki and lengthy submissions were made by him and by several counsel for respondents.
10. The recusal application was refused on the 3rd July 2007 and a written judgment was later delivered.
11. The main election petition was thus edged out of the roll at the instance of the applicant. The Panel then ordered counsel for both sides to retire and to agree on a date suitable for the hearing of this election petition. This was an indulgence by the Court which could have mero metu set the matter down for a fixed date of hearing.
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Notice of Withdrawal
12. A week later - on the 11th July 2007 - Mr Ntlhoki filed a "Notice of Withdrawal" couched thus:
"NOTICE OF WITHDRAWAL
KINDLY TAKE NOTICE THAT Applicant/Petitioner hereby withdraws the application/petition in this matter.
DATED AT MASERU ON THIS 11th DAY OF JULY 2007.
Signed:____________________
M. NTLHOKI & CO Applicants/Petitioners Attorneys"
Applications in terms of Rule 30 and for Condonation
13. This notice of withdrawal attracted an immediate response from the 1st respondent who then applied on the 13th August 2007 to set it aside as an irregular process under Rule 43(1)(a) of the High Court Rules 1980.
14. First respondent later applied for condonation for having failed to file the Rule 30 - application within 14 days as required by the Rule.
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15. Having heard Mr Moiloa for first respondent and Mr Ntlhoki for applicant the application for condonation was refused by this Court upon ground mainly that the Rules of this Court had been compromised by the first Respondent. Indeed the application for condonation was made only after the Mr Ntlhoki had raised the point in limine that the 14 day requirement had not been complied with.
16. In dismissing the application for condonation, the Court formally pointed to the Applicant's Counsel Mr Ntlhoki that the Court/Panel would take the matter of propriety or validity of notice of withdrawal mero motu. This was not in anyway an espousal of respondents' case but of the court exercising its duty.
Rule 43(1)(a) of the High Court Rules
17. In this regard Rule 43 (1) (a) of the High Court Rules 1980 was in point. It reads:
"43. (1) (a) A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or by leave of the court withdraw such proceedings."
18. In South Africa their Rule 41(1)(a) reads:-
"Withdrawal, settlement, discontinuance, postponement and abandonment
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41. (1) (a) A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or leave of the court withdraw such proceedings, in any of which events he shall deliver a notice of withdrawal and may embody in such notice a consent to pay costs; and the taxing master shall tax such costs on the request of the other party. "
The decided cases in South Africa regarding withdrawal are helpful and add authority to our own on the matter.
19. Under our common law practice, a person who has instituted proceedings is entitled to withdraw such proceedings without the
other party's concurrency and without leave of the court at any time before the matter is set down. (Franco Vignazia Enterprises Ltd v Berry - 1983 (2) SA 290 (c) 295 (H). This is based on the trite principle of public policy that it is not the function of the court to force a person to proceed with an action against his will or wishes or to investigate the reasons for abandoning or wishing to abandon one -(per Kumbleben J.A. in Levy v Levy - 1991 (3) SA 614 at 620 B).
20. But once a matter has been set down for hearing, it is not competent for the party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of court. Protea Assurance Co. v Gamlase - 1971 (1) SA 460 at 465 and where such leave or consent has not obtained, the purported unilateral notice of withdrawal is invalid.
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Notice of set down — effect of
21. Whether in any given case there has been a notice of set down is both a mixed question of fact and of law.
22. A notice of set down can, depending on the circumstances, be made by the applicant or by the respondent with notice to the
Registrar (who is being officially asked to enroll the matter) and to the other side.
A notice of set down notifies the other party that the matter will be heard on the date fixed. This is a question or matter of fact; it is however a question of law whether such notice of set down was made in accordance with the Rules.
23. It was Mr Ntlhoki's main contention and submission that when he filed his notice of withdrawal on the 11th July 2007, there was no subsisting or extant "notice of set down" related to this Petition; and so he submits, on the 2nd and 3rd July 2007, the petition's notice of set down was overtaken by the hearing of the recusal application. That the main petition was consequently not heard on the 2n and 3 July 2007, was solely due to the urgent application for recusal being heard at the instance of the applicant
himself. He had himself to blame and he should not now say the matter was not set down.
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24. Indeed, at the end of the recusal application and its dismissal, Mr Ntlhoki and respondents' counsel Mr Moiloa, Mr Molyneaux and Mr Phafane solemnly undertook to find new suitable date for the hearing of the main petition. In our view, Mr Ntlhoki could not -etiquette aside - unilaterally cause the matter to be withdrawn without leave of court.
25. We align ourselves with the recent reasoning of our Brother Molai J. in Mahala Molapo vs Hlonepho Ntsekhe and others —
CIV/P/2/2007 at p.6 where he held that once a petition had been set down and been postponed on several occasions, the consent of other parties or leave of court ought to have been obtained before filing with the Registrar a notice to withdraw the election petition. We agree.
26. In this petition in casu
(a) the matter had been set down and postponed several times, and
(b) when Mr Ntlhoki purported to withdraw the petition, the consent of t he respondents or leave of court had not been obtained.
27. We find that on the 15th May 2007 this Petition had been formally set down for hearing on the 2nd/3rd July 2007 but did not
proceed on those date for reasons already stated. Since it had not been removed from the Roll, the court's leave or consent of
respondents ought to have been obtained prior to its withdrawal.
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28. In exercise of its discretion and conscious to any possible prejudice to the litigants, the Court also condones in terms of Rule 59 of the High Court Rules 1980 the non-compliance with the Rule 152 which stipulates that –
"15. Whether or not a respondent files an answering affidavit, or a notice under ride 8
(c), as the case may be, within the period stated in rule 8 (b), as soon as may be after the expiry of the said period the Chief Justice shall fix the date of trial of the petition and the Registrar shall give notice thereof to the parties to the petition not less than seven days before the day appointed for the trial "(our underline)
This our condonation does not in any way prejudice the applicant who in fact did not object regarding the non-compliance with Section 104 (5) of the National Assembly Election Order No.10 of 1992. It in turn reads:
"104, (5) Despite subsection (4), the Court shall give all parties to the petition at least 7 days notice before it begins the proceedings relating to the petition" (our underline)
28. This Court makes the following order:-
1. "The notice of withdrawal dated 11th July 2007 is hereby
declared invalid as being in contravention of Rule 43(1)(a) of the High Court Rules 1980."
2 The Court of Disputed Returns (National Assembly Election Petition) Rules 1993 - Legal Notice No.54
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2. Matter having been taken up mero ntotu, justice requires that no order as to costs be made, and it is so ordered.
S.N. PEETE JUDGE
I agree :
A.M. HLAJOANE
JUDGE
M. MAHASE
For Applicant : Mr Ntlhoki
For Respondents : Mr Moiloa
Mr Molyneaux
Mr Phafane
