CIV/APN/116/07

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MAREMATLOU
FREEDOM PARTY APPLICANT

and

THE
INDEPENDENT ELECTORAL COMMISSION RESPONDENT AND 53 OTHERS

RULING
(on Rule 35 (11) (a) and (b) notice)

CORAM :
S.N. PEETE, J.

A.M. HLAJOANE, J.

L. CHAKA-MAKHOOANE A.J.

Date of
hearing: 19th November 2007

DATES :
21st NOVEMBER 2007

PEETE J.:

[1] After this Court had ruled that the "Notice of Withdrawal
of the Election Petition" by the applicant was improper
upon
grounds that it had been unilaterally made without leave of court, it
remained upon

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the applicant to pursue his election petition or to abandon it.
Applicant has elected to pursue the election petition.

[2] Because this Court wishes this election petition to reach its
finality, the Court then set the 19th November 2007 as the date
of
hearing of the petition.

[3] On
the 8th November 2007, the applicant filed a notice reading as
follows :-

"APPLICANT'S EXPERT NOTICE AND SUMMARY IN TERMS OF RULE 35 (11)
(a) & (b) (OF THE HIGH COURT RULES (sic)"

KINDLY TAKE NOTICE THAT Applicant intends calling Professor JORGEN
ELKLIT of Aarhus University, Copenhagen, Denmark and Mr

KELEBONE MAOPE to give evidence as experts in this matter and a
summary of their opinion and reasons are attached herewith:

QUALIFICATIONS
& EXPERIENCE:

1. Professor
   JORGEN ELKLIT is a professor of Political Science at AARHUS
   UNIVERSITY, COPENHAGEN DENMARK;

   
   

2. He
   has extensive knowledge and involvement in setting up electoral
   models, their interpretation, formulae and ultimate distribution
   of
   seats in parliament following elections.

   
   

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3. He
   has been involved in setting up the formula of the mixed member
   proportional representation which appears as Schedule 5 pursuant
   to
   section 92 A of the National Assembly Election (No.l) Amendment Act
   No.l6of2001.

   
   

4. He
   is also a member of the Electoral Institute of South Africa.

   
   

Mr
KELEBONE MAOPE

QUALIFICATION
AND EXPERIENCE

1. He
   is an advocate of the Court of Lesotho

   
   

2. He
   was at one time a lecturer in law at the NATIONAL UNIVERSITY OF
   LESOTHO (NUL);

   
   

3. He
   has contributed articles to the Law Journal and other publications;

   
   

4. He
   is the editor of the Lesotho Appeal Cases;

   
   

5. He
   is a Member of a Parliament for the Seqonoka Constituency and a
   leader of the Alliance of Congress Party (ACP);

   
   

6. He
   served as the Attorney-General and a Minister of Justice, Minister
   of Law, Constitutional and Parliamentary Affairs and Minister
   of
   Finance in the government of the Basutoland Congress Party (BCP) and
   of Lesotho Congress for Democracy (LCD) respectively.

   
   

7. He
   served as a government representative in the Interim Political
   Authority (IPA)

   
   

8. He
   will testify that the LCD in particular unsuccessfully piloted what
   is reoffered to as a parallel model of election which briefly
   allows
   political parties to opt for a constituency vote or a party vote in
   election. He will testify that this was rejected in
   favour of a
   mixed member proportional representation which is compensatory. To
   this extent parties ought to stand for both the
   constituency and
   party ballot. In turn parliament did not pass any legislation which
   allowed parties to opt for a choice of votes/ballots
   in elections.

   
   

DATED AT
MASERU ON THIS 08T" DAY OF NOVEMBER 2007.

M.
NTLHOKI & CO"

Applicant's
Attorneys

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[4] Rule
35 (11) (a) and (b) of the High Court Rules 1980 reads:-

"11. No party shall, save with leave of the court or the
consent of all parties to the suit, be entitled to call as a witness

any person to give evidence as an expert upon any matter upon which
the evidence of expert witnesses may be received unless he
shall -

1. not
   less than fourteen days before the hearing have delivered notice of
   his intention to do so, and

   
   

2. not
   less than ten days before the trial, delivered a summary of such
   experts opinions and his reasons therefore." (Underlining
   mine)

   
   

[5] The notice was not formally supported by any summaries
affidavits or and briefly describes the qualifications (competence)

of the persons intended to be called as expert witnesses and their
other historical experiences.

[6] It is perhaps necessary to recite the original "Notice of
Motion" in the main Election Petition. It reads:-

"TAKE NOTICE THAT MPHOSI MATETE (hereinafter called the
Petitioner) intends to petition the above Honourable Court for an

order -

1. declaring
   as unconstitutional and invalid the final allocation of seats in the
   National Assembly by the First Respondent following
   the 2007
   Elections;

   
   

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2. declaring
   as unconstitutional 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;

   
   

3. declaring
   as unconstitutional a invalid the alliance between the ALL BASOTHO
   CONVENTION (ABC) and the LESOTHO WORKERS PARTY (LWP)
   to contest the
   2007 Elections as a single entity for purposes of allocation of
   seats in a mixed member proportional representation
   in the National
   Assembly;

   
   

4. 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 a Schedule 5 of the
   National Assembly (No.1) (Amendment) Act No.16 of 2001;

   
   

5. directing
   First Respondent to pay the costs hereof and any other Respondents
   to pay such costs in the event of opposing this petition;

   
   

6. granting
   the Petitioner further and/or alternative relief "

   
   

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[7] The applicant alleges that the 53rd Respondent (Lesotho Congress
for Democracy- (LCD) and the 28th Respondent (National Independent

Party (NIP) entered into a "written alliance" or pact and
that in the proportional seat allocation for the National Assembly,

these respondents were unlawfully and unconstitutionally treated as
separate entities by 1st Respondent (The Independent Electoral

Commission).

[8] The applicant alleges that per agreement the LCD fielded some 80
candidates in all constituencies while NIP fielded none and
the
latter voted for LCD. It had also been agreed that for PR election,
the LCD would vote all for the NIP.

[9] For proportional listing presented to the IEC, it had been
agreed that NIP would prepare list which would include firstly
own
NIP members and then a certain listed members of the LCD some
standing in the Constituency elections.

[10] All this involved an intense and aggressive voter education and
campaign during the pre-election period.

[11] The applicant alleges that this LCD/NIP alliance agreement
disenfranchised their party members and defrauded/distorted the

statutory formula provided for in Act No. 16 of 2001 and it labels it
a corrupt practice prohibited by the statute and the Constitution
of
Lesotho.

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[12] Being treated as separate entities for the purposes of
allocating of seats, created - in applicant's view - a grotesque
distortion depriving other parties of the seats they could have
otherwise been allocated.

[13] From the papers in the record, it can be gleaned that the party
which did not contest constituency ballot, did not have to
be
considered by the IEC in the determination of the total proportional
representation. The applicants allege that the alliance
agreements of
LCD/NIP, ABC/LWP were unlawfully not treated as single identity by
the IEC which consequently treated each party
single in the
allocation of PR seats.

[14] In this petition, the onus of proof certainly is upon the
applicant/petitioner to establish its a case as prayed for in the

notice of motion wherein it challenges the constitutionality and
validity of seat allocation under the LCD/NIP pact or alliance.
This
has to be done on a balance of probabilities.

[15] An election petition - as Mr Viljoen correctly submits is sui
generis. The governing laws are found in the following Instruments:-

1. The
   Constitution of Lesotho 1993;

   
   

2. The
   National Assembly Election Order 1992;

   
   

3. National
   Assembly Election (No.l) (Amendment) Act No.16 of 2001;

   
   

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4. Court
   of Disputed Returns (National Assembly Election Petition) Rules
   1992;

   
   

5. High
   Court Rules 1980.

   
   

[16] Whereas the Constitution of Lesotho 1993 establishes the
jurisdiction of the High Court of Lesotho to hear the election
petitions as Court of Disputed Returns, the 1992 Act and 2001 Act
establish how the High Court shall operate when dealing with election

petitions. In particular, demanding expeditious disposal of election
petitions, section 104 of the Act reads:-

"How the High Court is to deal with an election petition

104. (1)
The High Court shall conduct the trial of an election petition in
open court

(2) In determining a petition, the High Court shall be suided by the
substantial merits of the case and eood conscience, without
regard to
legal form or technicalities, and shall not be bound by the rules of
evidence.

(3) At the trial of an election petition, the Court has power

1. of
   its own motion or on the application of a party to the petition, to
   compel the attendance of witnesses a the production of
   documents;
   and

   
   

2. to
   examine witnesses on oath; and

   
   

3. to
   punish a contempt of its authority by fine or imprisonment

   
   

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(4) The Court shall take all reasonable steps to ensure that

1. proceedings
   in relation to the petition begin within 30 days after the petition
   is lodged; and

   
   

2. the
   Court's final orders in relation to the petition are given within 30
   days after the end of the proceedings.

   
   

(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,

(6) At the trial of the petition, the Court may order a scrutiny of
the ballot papers used at the election and may make such other

ancillary orders for the determination of the petition as it
considers appropriate." (our underline)

[17] It is the paramountcy of section 104 that should require a
benevolent interpretation and application to ensure a just and

expeditious conclusion of every election petition trial. Issues of
conscience, fairness and natural justice all come into play
and the
power and discretion of the court are indeed immense and far
reaching.

[18] In an election petition, not only personal and political party
interests are at issue but also grave national interest is
at stake
only because public interest, tranquility and national development
all depend upon the outcome of a free and a fair election.
Elections
and voting in this Kingdom are fundamental rights of the Basotho and
are rights and freedoms specially protected under
the 1993 democratic
Constitution of Lesotho; any government of the day must pass the
muster of a

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democratic selection in a fair and free scenarion. (see Second
Amendment to the Constitution Act No. 7 2007 - section 6)

[19] The Court of Disputed Returns Rules and High Court Rules are
specially meant to ensure fair play, (natural justice) and
expeditious determination of election issues. They supplement one
another without strictly binding the Court which at the end of
the
day is guided by section 104 of Act 10 of 1992 (supra).

[20] Having been served with the Rule 35 (11) notice, the
respondents however elected not to have the notice set aside under
Rule 30 as being an irregular process but merely opposed it by way of
correspondence, with copies to the Registrar of the High Court.

[21] It is the non-compliance with the High Court Rule 35 (11) (a) &
(b) that is being raised by the respondents in this election

petition. Compliance of this Rule requires the following:-

1. a
   person sought to be called must be an "expert witness"1 in
   the matter in casu.

   
   

2. applicant
   must deliver a notice of his intention to do so "not less than
   fourteen days " before the hearing the petition.

   
   

3. "not
   less than ten days" before trial, he must deliver a summary of
   such expert's opinions and his reasons therefor.

   
   

1 See
para 25 (infra)

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If these are not complied with, leave of court or consent of other
party must be obtained. In our view formal application for
condonation is not necessary where non-compliance has occurred.

[22] Also in our view, no formal application to call expert
witnesses is required under Rule 35(11) (a) and (b) of the High Court

Rules but only "...notice of an intention to call ..." such
expert witness is required. Indeed generally under law a
litigant has
a basic right to call any witness or witnesses in support of his
case. A dominus litis (petitioner/plaintiff) thus
bears the burden
onus to prove his case in court by calling witnesses of own choice.

[23 But where non-compliance with Rule 35(11)(a) and has occurred,
leave of court must be obtained. The rationale behind the rule
is
clear, and that is: In deciding whether there has been compliance
with Rule 35(11)(b), it is relevant to have regard to the
main
purpose thereof which is to require the party intending to call a
witness to give expert evidence to give the other party
such
information about his evidence as will remove the element of surprise
(ambush or tactical advantage).

[24] The draftsman of the notice must ensure that no information is
omitted where the omission thereof might lead the other side
being
taken by surprise when in due course such information is adduced
during cross examination or evidence. The summary must at
least state
the sum and substance of the facts which lead to the reasoned opinion
or conclusion - See - Cooper (SA) (Pty) v Deutche
- 1976 (3) SA 352
per Wessels JA at 370-371.

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[25]
Indeed it has been stated that -

"In essence the function of an expert is to assist the court to
reach a conclusion on matters which the court itself does
not have
the necessary knowledge to decide. It is not the mere opinion of the
witness which is decisive but his ability to satisfy
the court that,
because of his special skill, training and experience, the reasons
for the opinions he expresses are acceptable
" Menday v Protea
Assurance 1976 (1) SA 565.

This distinguishes an expert witness from other ordinary witnesses
whose opinions are not admissible in court to establish facts
at
issue.

[26] In this case, while it may be the non-compliance was not at all
due to any mala fides on the part of the applicant or perhaps
it was
due to a genuine misconception of the requirement of the Rule and
indeed also due to certain pressures of last minute preparation
for
trial, the "Notice of the applicant" is fatally defective
in failing to adequately supply the Court and respondents
with a
sufficient summary of the expert's opinions and reasons therefor.
This manifestly prejudiced the respondents who were consequently

placed in a position where they could not meaningfully consult their
witnesses and perhaps be enabled to make additional investigations
of
their own on matters in casu.

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[27] In conclusion, we hold that the applicant's notice does not
sufficiently comply with the requirement of the Rule 35(11) (a)
and
(b) because, besides being out of time, it failed to furnish in
adequate detail its summary as to opinion and reason of the
expert's
conclusion.

Ruling

Whilst the applicant is free to call any other witnesses including
persons mentioned in his notice, the Notice to call expert witnesses

is hereby set aside for reasons stated. This being an election
petition and the respondents having failed to invoke the provisions

of Rule 30 of the High Court Rules 1980, the Court, in exereise of
its discretion, makes no order as to costs.

S.N.
PEETE

JUDGE

I agree

A.M.
HLAJOANE

JUDGE

I agree

L.
CHAKA-MAKHOOANE

ACTING
JUDGE

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For the
Applicant : MrNtlhoki

For the
Respondents: Mr Brett SC (instructed by Mr Moiloa)

Mr Viljoen SC (instructed by Mr Molyneaux)

Mr Phafane