CIV/P/5 /2007
IN THE HIGH COURT OF LESOTHO
In the matter between:-
MATOOANE MOKHOSI PETITIONER
and
JUSTICE TOKA MOTHEBE 1st RESPONDENT
PELELE A. LETSOELA 2nd RESPONDENT
PETROSE LITSIETSI 3rd RESPONDENT
BALEKANE Z. MOTSIELOA 4th RESPONDENT
MARIUS L. PAMPIRI 5th RESPONDENT
LEJAHA L. PEETE 6th RESPONDENT
MOELETSI M. QEKISI 7th RESPONDENT
MASUPHA RATOMO 8th RESPONDENT
TSOLELE J. TSOLELE 9th RESPONDENT
BASOTHOBATHO DEMOCRATIC PARTY 10th RESPONDENT
LESOTHO CONGRESS FOR DEMOCRACY 11th RESPONDENT
BASUTOLAND CONGRESS PARTY 12th RESPONDENT
MAREMATLOU FREEDOM PARTY 13th RESPONDENT
BASOTHO NATIONAL PARTY 14th RESPONDENT
ALLIANCE OF CONGRESS PARTIES 15th RESPONDENT
LESOTHO WORKERS PARTY 16th RESPONDKNT
NATIONAL INDEPENDENT PARTY 17th RESPONDENT
NEW LESOTHO FREEDOM PARTY 18th RESPONDENT
POPULAR FRONT FOR DEMOCRACY 19th RESPONDENT
INDEPENDENT ELECTORAL COMMISSION 20th RESPONDENT
ATTORNEY GENERAL 21st RESPONDENT
SPEAKER OF THE NATIONAL ASSEMBLY 22nd RESPONDENT
BABELI SEJA
23rd RESPONDENT
Heard : 18th July 2007
Delivered : 18th July 2007
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CORAM:
Nomngcongo J
Majara J
Mahase J
JUDGMENT SUMMARY
Application for withdrawal of election petition. Whether it can be made unilaterally without notice to the other party and/or leave of the Court. Provisions of Section 107 (1) of the National Assembly Elections Order 1992 (as amended) enjoins the Court to make a final determination thereof. Withdrawal refused, petition dismissed and a consequential order made.
On the 18th July 2007, the applicant moved this Court to grant him a withdrawal in respect of the petition in the main, the application
for recusal of all the presiding Judges herein and the application for consolidation of all the recusal applications of the election
petitions before the High Court Bench.
After the Court had heard all the submissions that were made on behalf of the parties, it dismissed the main petition and the ancillary
interlocutory applications and promised that full reasons for its decision will follow. I proceed to give them immediately below.
A brief summary of the facts that precipitated the launching of the main election petition is that on the 17th February, 2007 Lesotho held its national general elections. The petitioner and the 1st respondent herein had contested the elections for the Bela-Bela No. 21 constituency. The result was that the 1st respondent was declared the winner by a majority
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of one thousand, nine hundred and thirteen (1913) votes and the 1st respondent the first runner-up with one thousand, seven hundred and twenty-seven (1727) votes.
Subsequent to the official publication of the results, and being dissatisfied with same, the petitioner approached this Court on the 23rd March 2007, seeking an Order in the following tercns:-
Setting aside the election at No. 21 Bela-Bela constituency and directing a fresh election to be held.
Costs in the event that this application is opposed.
Further and/or alternative relief.
The application was opposed by the 1st 11th 17th 20th 21st 22nd and 23rd respondents per their respective notices of intention to oppose. On the 4th April 2007, the parties' legal representative appeared before the Court and the matter was postponed to the 12th June 2007 for hearing with the respondents being directed to file their answering papers on or before the 28th May, 2007 and the petitioner his reply on or before the 5th June 2007. On the 12th June 2007, the petitioner filed an urgent interlocutory application for an Order couched as follows:-
A Rule Nisi be issued calling upon the respondents to show cause, if any, why an order in the following terms shall not be made final:-
Dispensing with the periods and modes of service of process stipulated by the rules due to the urgency of this matter.
The relief sought in terms of prayer l(c) below be determined on the 12th, 13th June prior to the determination of the main application
in CIV/P/05/2007.
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That the Honourable Judges constituting the Full Bench of the High Court consisting of M. Hlajoane, N. Majara and M. Mahase (and/or any other permanent member of the High Court Bench) should recuse themselves from adjudicating on the main application in CIV/P/05/2007.
That the respondents be directed to pay costs of this application only in the event of contesting same.
That Applicant be granted further and/or alternative relief.
2. That prayers 1 (a) and (b) operate with immediate effect as an interim interdict.
On the 12th June, 2007, which was the initial date of hearing, the Court was informed that the applicant had not yet filed his reply and the matter was postponed to the 18th July 2007 for hearing and the applicant was ordered to file his reply on or before the 22nd June 2007. I also find it apposite to mention at this stage that my sister Hlajoane J had since been replaced on the panel of Judges herein by my brother Nomngcongo J.
On the 18th July, 2007 when the matter was supposed to proceed, Mr. Phoofolo who represented the petitioner both in the main and in the ancillary application for recusal informed the Court that his client had instructed him to withdraw the petition and the ancillary applications i.e. for recusal and for consolidation respectively because there were negotiations and/or dialogue going on between the political parties in the country which would only continue on condition that no cases in that regard were pending in the High Court. Mr. Phoofolo further informed the Court that he was not privy to the nature of the dialogue but had been instructed to tender costs for the withdrawal.
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Counsel for the petitioner also made the submission that as opposed to election petitions that had been launched in the past, the withdrawal herein was being made in the public interest i.e. for facilitation of a peaceful resolution of the conflict that had arisen as a result of the general elections and that for that reason, the principle that election petitions ought to be decided to finality should not apply in this matter.
In response, Mr. Phafane who represented the 1st, 11th, 17th and 22nd respondents respectively, pointed out that the application should not succeed for the reason that it was made from the bar and there was no evidence regarding the reasons advanced for the withdrawal of the petition. He added that the attitude of the repondents he was representing was that no negotiations were taking place between the political parties contrary to what was alleged by the petitioner in that regard.
It was Mr. Phafane's further submission that the Court has to make a final determination of this petition as it is so enjoined by the provisions of Section 107 (1) of the National Assembly Elections Order.
Counsel for the respondents added that the allegations in the main application were serious and damaging against his clients because
they were accused of having behaved in a corrupt and dishonest fashion in order to win the elections. Further that a withdrawal
under such circumstances would severely compromise the public interest and safety and would compound the problem as it might end up with catastrophic effects unless a decision was made by the Court.
Mr. Phafane also made the submission that the law recognizes that by their very nature, election petitions are matters of public interest so that
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there has to be a judicial pronouncement regarding same and that it is on account of this recognition that authorities are at a consensus that election petitions should be determined to finality even in the form of a dismissal. To this end, Counsel referred the Court to the case of Abel Moupo Mathaba & Others v Enoch Lehema & Others 1993-94 LLR / LB 402 at 408.
Further that the Court should dismiss the petition and the ancillary applications with costs and to consequently make an order declaring
that the 1st respondent had been validly elected in terms of Section 107 (1) (a) of the Order. To support his submission, Mr. Phafane
cited the case of Moeketsi Tsatsanyane & Others v Tjaoane Sekamane & Others CIV/APN/348/98.
On behalf of the 20th respondent, Mr. Moiloa also asked the Court to dismiss the petition and the ancillary interlocutory applications with costs and aligned himself with Mr. Phafane's submissions. He also added that in terms of Rule 43 1 (a) of the High Court Rules, once parties have joined issue and the Court is seized with the matter, a party may only withdraw proceedings with the leave of Court.
Mr. Moiloa made the submission that in this matter the Court was seized with a unilateral application for withdrawal that had been made without such leave. In support thereof, Counsel cited the cases of Michael Phoso Moketa v David Mochochoko & Attorney General CIV/APN/202/93 and Swissborough Diamond Mines (Pty) Ltd v Commissioner of Mines & Others 1991-1996 LLR p 1667 respectively.
He added that the allegations of the petitioner as they appear at paragraph 6 of the petition were answered to fully in the answering
affidavit.
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In his submissions, Mr. Makhethe Counsel for the 21st and 22nd respondents stated that he fully associated himself with the prayer that the petition and ancillary interlocutory applications should be dismissed with costs. He added that the law on withdrawal of election petitions cannot be debated per the decision in the case of Michael Phoso Moketa (supra) and other authorities alluded to. He added that there was no application for leave to withdraw and that the withdrawal application was improperly before the Court and as such was ineffectual.
In his brief reply, Mr. Phoofolo made the contention that with regard to the allegations by the petitioner, even the 20th respondent had admitted its own mistakes in the answering affidavit so that there was nothing scandalous about the allegations made against it.
He further made the submission that the 20th respondent never opposed the application for recusal and consolidation of same so that they could not ask for costs in that regard. He conceded that the petitioner should have asked for leave of Court to withdraw the
matters but added that he stood by their submissions.
I now proceed to consider the application.
It is worthy to note that the petitioner failed to file his reply in the main as he was ordered by the Court despite the vehement denial by the 1st respondent of the serious allegations that appear in the founding affidavit. While the filing of a reply is not mandatory in terms of the Rules of Court, it was expected that this being an election petition premised on serious and disputed allegation of fraud and corruption, the petitioner would be well advised to file his reply. Be that as it may, it is common cause that on the date of hearing, submissions were only made with regard to the petitioner's unilateral withdrawal of the petition and the ancillary interlocutory applications, not on the merits.
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In the case of Mathaba & Ors V Lehema & Others (supra) P 408 quoted to this Court, one of the issues for consideration by the Court therein was that of withdrawal of an election petition. For convenience, I proceed to quote a passage that was extracted from an earlier ruling in Moketa v Mochochoko (supra) wherein the Court had made the following observation:-
"The aspect of a withdrawal of a petition is not to be found in the National Assembly Election ORDER, 1992. Neither for that matter was it to be found in the Electoral Act, 1968, or indeed in previous legislation. Consequently the specific and stringent provisions in respect thereof in the High Court (National Assembly) (Election Petition) Rules of 1965 and again of 1985 may possibly be ultra vires, and were not repeated in the Court of Disputed Returns (National Assembly Election Petition) Rule, (sic) 1993, Nonetheless, Rule 19 of the latter Rules reads thus:
'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.'"
Indeed the position of the law has not changed since this decision was made in that there are no Rules of Court of Dispute Returns regarding inter alia, withdrawal of a petition so that in this regard the Court is indeed bound by the High Court Rules. In terms of the provisions of High Court Rule 43 (1) (a) a party is enabled to withdraw proceedings at anytime before the matter has been set down and by consent of the parties or by leave of Court.
In this petition, at the time the petitioner purported to withdraw, the matter had already been set down for hearing not to mention that it had previously been postponed at his instance. Further, the petitioner had neither obtained the consent of the other parties to the proceedings nor
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had he sought leave of the Court to withdraw the applications. I therefore find that he acted in contravention of this Rule.
In addition, the reasons that were advanced on behalf of the petitioner for the purported withdrawal were vehemently denied by the
respondents, to wit, that the political parties in Lesotho were in the middle of negotiations and the same would only continue if there were no pending cases regarding the elections. Under the circumstances, the Court accepted the version of the respondents in light of the principle in Plascon-Evans Paints v Van Riebeeck 1984 (3) SA 623. Authority is legion in this regard, not to mention that there was no proper evidence before the Court with the application only being made from the bar on the date of hearing.
Although Mr. Phoofolo made the submission that the withdrawal was in the public interest, authorities to the contrary abound in that decided cases have laid down the principle that such petitions have to be decided to their finality with the most minimum delay. Thus, in the Mathaba case (supra), p411 the Court stated that the issue of withdrawal of an election petition is one of public policy. It continued as follows:-
"That is apparent even today from the mandatory and directory provisions in the Order, which seek to respectively to expedite the hearing and delivery of judgment in petition...." (my emphasis)
I respectfully agree with Court in this regard and might also add that the intention of the Legislature to ensure expedition of election petitions can also be inferred from some of the provisions of the National Assembly-Election Order, 1992 (as amended) such as section 104 (4) which reads as follows:-
"The Court shall take all reasonable steps to ensure that-
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proceedings in relation to the petition begin within 30 days after the petition is lodged; and
the Court's final orders in relation to the petition are given within 30 days after the end of the proceedings."
In casu, not only had the 30 days long lapsed since the petition was lodged, but the hearing thereof had been postponed at the instance of the petitioner. Over and above this, on the date of hearing, not only had he not filed his replying affidavit, but the petitioner also sought to unilaterally withdraw the matter without the leave of Court. Further, in the case of Swissborough Diamond Mines (Pty) Ltd & Another v. Commissioners of Mines & Geology & 4 Others 1991-96 LLR (Vol.2) p 1667 at p 1671, when considering the issue of a unilateral withdrawal of any matter, the learned Steyn AP (as he then was) had this to say:-
"...the proposition is clearly untenable ie, that a litigant can unilaterally seek to impose conditions upon its withdrawal of any litigation on which it has joined issue with its opponent and with which the Court is seized. Respondent was therefore entitled upon receipt of the "conditional withdrawal" of the appeal to resist the attempt to defer a decision on the merits of the appeal to a future date in the guise of a qualified notice of withdrawal."
On the strength of the above case, it is my view that allowing the petitioner in this matter to unilaterally withdraw the petition and the ancillary applications would be tantamount to deferring a decision on the merits of the petition to some future and unspecified
date. This would clearly be contrary to the trite position of the law that due to their special nature and the fact that they are not matters inter partes but ones of public policy, election petitions must be expeditiously heard and judgments therein timely delivered.
In the light of the decisions in the quoted cases and those referred to therein, we accordingly found that the petition and the ancillary
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interlocutory applications stood to be dismissed and we proceeded to
order as follows:-
That the main petition is dismissed with costs to the 1st 11th, 17th 20th, 21st and 22nd respondents and accordingly make a consequential
order that the 1st respondent was validly elected to the Bela-Bela No.21 constituency.
The application for recusal is dismissed with costs to 1st,' 11th, 14th, 21st and 22nd respondents.
There is no order regarding the application for consolidation as it was never placed before this Court.
N. MAJARA
JUDGE
I agree : T. NOMNGCONGO
I agree : M, MAHASE
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