CIV/APN/579/07

IN THE
HIGH COURT OF LESOTHO

In the
matter between: -

MOEKETSI
ALEXIS HANYANE 1ST APPLICANT

MOTSIE
RALIILE 2nd APPLICANT

THESELE
'MASERIBANE 3rd APPLICANT

KHOBOSO
MANTSO 4th APPLICANT

'MAPALESA
MOSETSE 5th APPLICANT

and

THE
BASOTHO NATIONAL PARTY (BNP) 1ST RESPONDENT

SECRETARY
GENERAL OF BNP 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 30th November 2007

On the
30th November 2007 this matter was argued before me and after I had
heard submissions from both sides through the parties'
respective
Counsel, I dismissed the application and promised that my reasons
would follow. I proceed to give them below.

Applicants
herein approached this Court on an urgent basis for an order in the
following terms:-

1. That
   the rules of this Honourable Court pertaining to periods and modes
   of service be dispensed with due to the urgency herein.

   
   

2. A
   Rule Nisi be issued returnable on the date and time to be determined
   by this Honourable Court calling upon the respondents to
   show cause
   (if any) why:

   
   

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1. A
   letter dated 20th November 2007 purportedly written by the 2nd
   respondent to the applicants shall not be declared null and void
   and
   of no legal force and effect.

   
   

2. An
   independent body shall not be appointed by the two sides to oversee
   the conference from the process of registration up to the
   holding of
   the elections.

   
   

3. The
   appointment of the disciplinary Committee purportedly appointed by
   the unconstitutional working committee should not be declared
   null
   and void and of no legal force and effect.

   
   

4. The
   Applicant should not be allowed to have access to all documentation
   relevant to the holding of the upcoming conference.

   
   

5. The
   duly elected delegates from the constituency committees of Berea,
   Maputsoe, Mafeteng to cite a few, should not be accepted
   by the
   office of the 2nd respondent.

   
   

6. Costs
   of suit.

   
   

7. Further
   and/or alternative relief.

   
   

On the
day this application was launched, the respondents herein were served
with the papers in the late afternoon following which
they filed
their notice of intention to oppose. Having heard both sides, I
postponed the matter to the next day to enable the parties
to file
all their pleadings and join issue. On the next that day when they
were supposed to address the Court, both Mr. Nthabi
and- Mr.
Thoahlane informed the Court that there was a possibility of
settlement between their respective clients and the Court
adjourned
the matter to give them that opportunity.

When the
Court re-convened, Counsel told the Court that they had come to the
following agreement:-

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i) That the letter dated the 20th November 2007 would not be used
during the conference.

ii) That flowing from the above, applicants abandon prayer (c) in the
Notice of Motion.

This
meant that the Court would be addressed on issues emanating from
prayers 2(b)

(d) and
(e) as they stood in the Notice of Motion.

The
respondents had raised points of law in limine in their answering
affidavit deposed to by Ranthomeng Paul Matete, the 2nd respondent
in
this application to wit;

1. That
   this Court lacked the jurisdiction to entertain this application for
   the reason that the applicants had not exhausted the
   local remedies
   before instituting it.

   
   

2. That
   none of the prayers sought by the applicants were interim but final
   in nature, and that this factor was fatal to the application.

   
   

3. That
   the application was not urgent and any urgency was self-created.

   
   

4. That
   there existed material disputes of fact that were foreseeable.

   
   

5. That
   the applicants were guilty of non-joinder of necessary parties being
   the individual members of the National Executive Committee
   (NEC) of
   the 1st respondent and the National Executive Committee of the BNP a
   body in charge of the 1st respondent.

   
   

At the
outset of his submissions, Mr. Thoahlane, Counsel for the 1st
respondents informed the Court that they were abandoning the
point of
jurisdiction. After this was duly noted, he proceeded to address the
Court on the other points.

On
urgency, it was Counsel's submission that from the averments
contained in paragraphs 7, 8 and 9 of the founding affidavit on
which

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prayer
2(b) was premised the applicants ought to have brought the
application much earlier. Further that the applicants knew about
the
holding of the annual conference since the 13th September 2007 in
terms of the date that appears on the letter annexed in the
file and
that this same argument extended to prayer (e) in the Notice of
Motion. Mr. Thoahlane submitted that in light of the above,
the
applicants could not come to Court on urgency and only serve the
papers on the respondents at 5.00 p.m. of the dame day, which
was
also a day before the holding of conference. He added that the
purported urgency was self-made.

On
non-joinder, Counsel for the respondents stated that necessary
parties who were going to be affected by the decision of the Court

had not been joined yet they were interested parties herein whose
portfolios were annexed in the answering affidavit. He added
that the
NEC is charged with the running of the 1st respondent and that its
duties entailed convening meetings and running the
affairs of the
party. Further that appointing an overseer in terms of prayer 2(b)
would have the effect of usurping the powers
of the NEC which had not
been joined so that it could defend its mandate. Mr. Thoahlane
further added that the individuals that
made up the NEC should have
been joined because the application sought to erode their powers. In
this regard he referred the Court
to the cases of Matime v Moruthoane
LAC 1985-89 and Masupha v "Mota 1985-89 LAC, respectively.

With
regard to the existence of a dispute of fact, Counsel for the
respondents pointed out that the averments contained in paragraphs
7,
8, 9, 10 and 11 were all disputed in the answering affidavit. He
added that annexure "MAH 1" is not a charge contrary
to the
applicants' assertions and that the assertions based on its contents
were denied by the respondents. Further that the respondents

challenged the 2nd applicant's mandate as evinced by the contents in
paragraph 12.1 and

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12.2. He
submitted that this application is fraught with disputes of fact
which cannot be resolved on the papers. To this end, he
referred the
Court to the case of Lehlohonolo Tsehlana & Another v NEC of the
LCD & Another C of A (CIV) No. 18/05.

On the
nature of the payers sought, Mr. Thoahlane made the submission that
these were final in nature and that there was no legal
basis for
requesting prayers 2(b) and 2(e) and no factual basis for seeking the
last prayer. Lastly that the prayer 2(d) was also
not supported by
evidence with respect to who denied the applicants access to the
papers referred to therein.

In
reaction to the above points, Mr. Nthabi made the following
submissions;

That
regarding urgency, the applicants had shown under oath per paragraphs
11 and 12.7 of the founding affidavit that the letter
dated the 20th
November 2007 was only acted upon by the NEC three (3) days before
the 30th November, 2007, the day of the conference.
He added that
this brought about the apprehension on the part of the applicants
because they had no idea when the disciplinary
proceedings would take
place. It was his submission that the urgency flowed from that
fear/apprehension.

In
respect of non-joinder, Mr. Nthabi submitted that the Constitution of
the BNP in terms of section 28 made provision regarding
who should be
cited in Court proceedings and that this settled the matter.

On
dispute of fact, it was Mr. Nthabi's contention that the Court can
safely assume the existence of a dispute of fact but that
the
yardstick was how would the granting of prayer 2(d) prejudice the
respondents. He submitted that if the rules were not going
to be bent
no-one was going to

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suffer
any prejudice. He added that the Constitution of the 1st respondent
per section 14 does not give powers to the 2nd respondent
to
supervise elections. Further that there was evidence that the Berea
Constituency was elected despite resistance from the office
of the
2nd respondent.

With
respect to the nature of the prayers sought Counsel for the
applicants argued that the respondents did not stand to suffer
any
prejudice if the prayers were granted because their right to
participate was accommodated. That in addition, if they were acting

in good faith they had no need to worry. It was his submission that
the Constitution of the 1st respondent is silent on this matter
and
does not bar such a measure. Lastly, that there would be no other
avenue to best protect the interests of all the parties.

In reply,
Mr. Thoahlane made the contention that with respect to prayer 2 (b),
the applicants were effectively seeking an amendment
of the
Constitution by this Court and that this cannot be allowed. To that
end Counsel made reference to the case of BNP &
Another v Thabang
Nyeoe & 314 Ors CIV/APN/348/2006 and submitted that whether or
not the order sought was for the benefit of
the parties was neither
here nor there. Further that it was incorrect for the applicants to
suggest that the Constitution is silent
in that regard.

In
addition, Mr. Thoahlane stated that the concession by Counsel for the
applicants that this Court could safely assume that there
is a
dispute of fact strengthens the respondents' argument and thus brings
the matter to rest. Further that the article referred
to in the
constitution as justification that there was no need to join the
other parties was incorrectly interpreted by the applicants.

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Lastly
that over and above all, the prayer sought for the appointment of an
overseer did not even state who or from where such a
person should be
appointed and that this would be contrary to the party's
Constitution. He added that the averments contained in
paragraph 11.2
of the founding affidavit as justification for urgency were highly
disputed in that it was the case of the respondents
that there is no
such letter as alleged by the respondents and that what was averred
was not contained in the papers by which the
applicants must stand or
fall. That for that reason there was no basis for the applicants to
have approached the Court on an urgent
basis.

I proceed
to consider the said points of law.

I also
find it apposite to mention at this stage that in light of the fact
that the matter was argued on the evening of the holding
of the
conference and that if the Court upheld the points of law that were
raised they would likely dispose of the matter, I ruled
that in the
interests of time, I should be addressed on them first and would only
hear submissions on the merits in the event that
I dismissed the
points of law.

Urgency

In
establishing urgency in casu, the deponent to the founding affidavit
averred as follows at paragraph 6 and parts of 11 thereof
and insofar
as relevant to this issue:-

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"On or about the 13th day of August, 2007 it was announced
through a circular by the 2nd Respondent how the members of the
1st
Respondent should know from an annual general conference of the 1st
respondent would be held on the 20th day of November, 2007
in keeping
with its constitution. A copy of the circular is herein annexed and
lebelled (sic) "MAH3".

-11.1-

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It was only on the 27th November, 2007 when the NATIONAL EXECUTIVE
COMMITTEE (hereinafter referred to as the N.E.C.) sat and resolved

that the General Conference would go ahead as scheduled and confirmed
the date and announced the venue for same.

-11.2-

It was only on the 27th of November, 2007 that the N.E.C. and (sic)
endorsed the descission (sic) of the Working Committee that

disciplinary proceedings be instituted against the applicants. I
attach herein a fair translation of the letter purportedly written
to
me by the 2nd Respondent and mark it "MAH 1".

-11.4-

Now my fear and that of the other applicants is that the so-called
working Committee of the N.E.C might use these letters to prohibit
us
from participating freely in the coming general conference.

-11.5-

It is further my fear as the national Leader of the BNP Youth league
and probably of the leader of the Womens (sic) League that
might
(sic) deny me my political rights as a leader to give the report to
the conference as regards the state of the organ which
I am leading."

These
averments were answered as follows in the answering affidavit deposed
to by Ranthomeng Paul Matete in parts and insofar as
relevant: -

Ad para
11.1

"I wish to inform this Honourable court that on the 27th instant
we sat but not concerning "resolving" and "confirming"

that the annual GENERAL Meeting will go ahead as schweduled (sic). It
was and of finalise (sic) preparations for the said conference
and to
refine logistics for same. Find herein attached minutes of the sid
(sic) meeting. They are marked "BNP 1". THEY
ARE SELF
EXPLANATORY.

As for
the Conference and when it was scheduled to go ahead, this was
communicated to the relevant parties a loooong (sic) time
ago....

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Ad para
11.2

I wish to
inform this Honourable court as and concerning the procedure leading
to the institution of the Disciplinary Proceedings
against a member
of the 1st Respondent: if there is any grievience (sic) or complaint
against the a (sic) member of the 1st Respondent,
then a letter is
written to such a member for him to show cause why a disciplinary
measures (sic) can not be taken against him
for whatever misdeed or
misconduct it is alleged he did. This does not necessarily mean that
a decision has already been taken
by the N.E.C. and/or the Working
Committee., A decision to that effect can only be taken after the
member has had an opportunity
to reply and his reply will determine
the nature of the decision to be taken against him- either to
institute disciplinary Proceedings
or otherwise....

In this
instant their letters responding to a letter written by me dated 20th
instant and annexed to the founding affidavit presumably
it is the
one referred to as Annexure "MH 1" (sic), it had not yet
been tabled before N.E.C. and/or the working Committee.
Even as I
depose hereto, they have not as yet been tabled before either body.
At the moment we are busy preparing for the conference
and no more.

Ad para
11.4

Contents
herein are but a flight of fancy. They are not real 1stly, the
Applicants have not been charged at all as present....

Ad para
11.5

We can
not act against our Constitution. The circular No.4 attached to the
founding affidavit speaks for itself Deponent has been
invited to
give a report as well as the 5th Respondent No letter has been
written to both individuals informing them not to attend...."

The
applicants did not file a replying affidavit. The letter referred to
as Annexure "MAH 1" addressed to the 1st applicant
and
dated the 20th November 2007 and its fair translation was attached
and I find it convenient to quote only the translation and
its
contents which read as follows: -

"It has come to the attention of the Head Quarters of the Party
that there are some allegations which you are publishing,
or acts you
are

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doing, with the intention of the bringing the leadership of the party
into disrepute among the nation, in breach of certain sections
of the
Constitution of the party, more specificically (sic) sections six (6)
and ten (10) thereof...

Because
of this reason I write you this letter so that you should show within
a period of seven days reasons why you cannot be brought
before the
disciplinary Committee of the Party because of the conduct that is
not acceptable to the party.

The
letter is signed by the General Secretary and 2nd respondent in these
proceedings. In my opinion, the letter is only limited
to directing
the 1st applicant to give reasons within the specified period why
disciplinary proceedings could not be brought against
him. Nowhere do
the contents of the letter justify the fear and/or apprehension that
the applicants averred precipitated their
launching of this
application. The conference was not referred to or mentioned at all.

Further,
the 1st applicant's averment that the N.E.C. endorsed the decision
that disciplinary proceedings should be brought against
him is not
supported by any evidence. In my opinion, Mr. Nthabi's submission
that the Court should accept this averment for the
reason that it was
made on oath failed to take into account the fact that it was
disputed in the answering affidavit, not to mention
that no reply was
filed by the applicants in this regard. It is therefore not enough
for a deponent to aver a fact on oath without
any proof if such
evidence is disputed by the other side. It is trite that under such
circumstances the version of the respondent
will be preferred. To
this end see the celebrated case of Plascon-Evans Paints v Van
Riebeeck 1984 (3) SA 623.

Indeed, a
litigant who decides to approach the Court by was of motion
proceedings does so at his own peril because it is trite that
he has
to stand and fall by his founding papers. If averments therein are
found

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wanting,
then he has to live with his decision if the Court does not find in
his favour. Authority is legion on this point. Suffice
it for me to
refer to the case of Tsehlana (supra) p3. I accordingly found that
the point raised by the respondents had merit.

Dispute
of Fact

Perusal
of the affidavits filed of record reveal that they are indeed fraught
with several disputes. It is however trite that it
is not enough for
a respondent to allege that a dispute of fact exists. The test that
has been laid down for the Court to make
a proper consideration
thereof is whether the alleged dispute is material to the
determination of the issues as a result of which
these cannot be
properly decided on the papers. In casu, the applicant averred that
that the N.E.C. had endorsed that disciplinary
proceedings should be
instituted against the 1st applicant on the basis of the contents of
annexure "MAH 1". This was
disputed by the 2nd respondent
in his answering affidavit. Notably, the purported communication was
not annexed to the pleadings
to support that averment.

Further,
the respondent also disputed that they would use the said letter to
prohibit the 1st and 5th applicants from participating
in the general
conference and/or deny them their political rights to give their
reports to the conference with regard to the state
of the organs they
are leading. Indeed, aside from the applicants asserting that they
have such fear and/or apprehension, they
did not support it with
facts. This was a very material dispute.

In
addition, there are several other disputed facts which I find
unnecessary to cite to avoid overburdening this judgment. Suffice
it
to mention that in my view, most of them go to the root of the
running of the affairs of the 1st respondent including the holding
of
elections which

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in terms
of the averments contained in paragraph 7 of the founding affidavit,
have over the "been fraught with bitter rivalry
and
unhappiness."

Since in
my view these disputed facts formed the basis of the applicants'
discontentment, they ought not to have approached this
Court by was
of application proceedings, not to mention doing so on the eve of the
holding of the general conference resulting
with the entire pleadings
being hastily and poorly drawn and as such filled with plenty of
unnecessary and inexcusable errors that
could have otherwise been
avoided. It is hardly surprising that they were not even able to file
a reply despite the obvious need
for them to have done so in the
light of the respondents' assertions.

I can
only add that party and indeed organization infighting is a common
phenomenon that cuts across all parties all over the globe.
As such,
it is my view that litigation in that regard should be handled with
the utmost commitment and seriousness that would enable
the Courts to
properly decide the issues. This includes litigants being properly
advised on the appropriate manner of approaching
the Courts for
relief. For these reasons, this was a point well taken by the
respondents.

Non-joinder

In his
submissions, Mr. Nthabi did not dispute that the N.E.C. and the
holders of the different portfolios have not been joined.
He however
made the submission that there was no need for the applicants to join
them in these proceedings for the reason that
Article 28 (1) of the
Constitution of the 1st respondent allows this. It reads in parts and
insofar as it is relevant to this issue
as follows:-

"The Party may sue or be sued in respect of property or funds
under the control of the National Executive Committee. In all

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actions instituted by or against the Party the Secretary General or
any other person appointed by the N.E.C shall be cited as
representing the Party.n

My
reading of the said provision led me to conclude that properly
construed, it was not meant to indiscriminately apply to those

matters that are civil suites inter-parties. In other words, I
understood the article as being specific to those matters where
the
Party is suing or being sued by other litigants extra the BNP. In
addition, the provision also makes specific mention of litigation
in
respect of property or funds under the control of the NEC. I was
therefore of the view that to find otherwise might result in
an
absurdity for it would create a situation where people who may have a
direct and substantial interest in a matter and who the
law requires
that they be joined in the proceedings would incorrectly not be
joined yet the resultant decision might affect them
whether in their
personal or official capacity. Accordingly, I also upheld this point.

The
Nature of the Prayers Sought

I have
already shown that it is common cause that the prayers that the
applicants were seeking from the Court are final in their
nature. The
question for determination was therefore whether the applicants had
satisfied the legal requirements for taking this
particular course of
action. In other words had they established a clear right, an injury
actually committed or reasonably apprehended
and the absence of
similar protection by any other ordinary remedy?

In my
view, the facts before the Court did not satisfactorily establish
these requirements. This is because while I might have found
that
they had established a prima facie right as members of the 1st
respondent, which in at any rate may have entitled them to
a
temporary (and not a final) interdict, I however did not see anywhere
in the pleadings where the applicants alleged any facts
that would
justify my concluding that an

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injury
had actually been committed or that their apprehension was
reasonable. Nor did they establish through the facts that there
was
no similar protection by any other ordinary remedy.

For these
reasons, I did not accept the submission that was made on their
behalf to wit, that the fact that the respondents did
not stand to
suffer any prejudice justified their seeking the prayers that they
sought. Surely this is not one of the acceptable
legal principles
that the Court should take into account in determining this question.
In this regard see the work of Herbstein
and Van Winsen; The Civil
Practice of the Supreme Court of South Africa (Now the High Court and
the Supreme Court of Appeal) 4th
Edition pp 1063- 1076 and
authorities referred to therein. Further, as I did point this out to
Mr. Nthabi, the fact that the end
might justify the means cannot be
the yardstick to measure whether or not the kind of prayers sought
were tenable. I therefore
found that this point too was well taken by
the respondents.

It is for
all the above reasons that I dismissed the application with costs.

N. MAJARA

JUDGE

For
applicants : Mr. Nthabi

For
respondents : Mr. Thoahlane

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