IN THE HIGH COURT OF LESOTHO
In the matter between:-
MAJARA JONATHAN MOLAPO APPLICANT
NATIONAL EXECUTIVE COMMITTEE
OF THE BASOTHO NATIONAL PARTY 1ST RESPONDENT
THESELE MASERIBANE 2ND RESPONDENT
RANTHOMENG MATETE 3RD RESPONDENT
TS’ITA LETSIE 4TH RESPONDENT
BASOTHO NATIONAL PARTY 5TH RESPONDENT
Delivered by the Honourable Madam Justice M. Mahase
On the 3rd October, 2011
Civil Procedure – Practice – Contempt of Court – What amounts to same – Rules of this Court.
This is the application in which the applicant has prayed this Court to commit the above-named respondents for being in contempt of the order of this Court dated the 23rd June 2011.
The application (notice of motion) in question was filed in this Court on the 31st August 2011. It was subsequently served upon the respondents on the 3rd September 2011.
This appears on the front page of the original notice of motion, as well as on the return of service dated the 5th September 2011. Subsequently, the respondent filed a notice of intention to oppose this application. It is dated the 5th September 2011.
In other words the respondents caused such a notice to be filed on their behalf on the very day that they were served with a notice of motion. They then filed an answering affidavit on the 16th September 2011.
This was followed by the filing of a notice in terms of the provisions of Rule 30 of the Rules of this Court dated the 21st September 2011. This was duly served upon the applicant or his attorney on the same day.
The applicants did not file a replying affidavit.
It must be indicated at this juncture that in this notice, the respondents have raised a point of law; namely that of res judicata. They say that since this Court has already disposed off the main application, regard being heard to the parties involved; but the main application now on appeal; then the instant application of contempt of Court should not have been set down for argument before this Court.
They say that this matter is not only res judicata, but it is also pending before the Court of Appeal and is to be heard (by the Court of Appeal) on the 13th October 2011.
The term res judicata pertains to a situation where a formal judgment or order of court in respect of a case has already been delivered. The inquiry in respect of res judicata, is not whether the judgment is right or wrong, but whether there is a judgment.
In the instant case, this Court has not made nor delivered a formal judgment on whether or not the respondents numbers 1 up to 5 have disregarded an order of court. The judgment which they are alleged to have disregarded and or which they refused to obey is the one in the main application dated the 23rd June 2011. The issue pertaining to their contemptuous behaviour, which issue has been filed within the main application has not yet been finalized. This is the very issue that is now being argued today.
The respondents cannot therefore be heard to argue that the contempt of court application has been finalized merely because they have noted an appeal to the Court of Appeal in respect of the main application. They have not invoked the provisions of Rule 13 (2) of the Court of Appeal Rules, 2006, in respect of the judgment in the main application. They therefore remain in contempt of an order of this Court dated 23rd June 2011.
In fact, this is an effort on the part of the respondents to confuse this court so as to allow themselves to buy time until when their appeal will probably have been decided by the Court of Appeal.
The sixty days within which they should have re-convened the conference, subject-matter in the main application has long expired. They have deliberately and willfully, and with impunity refused to re-convene that conference in clear violation of the order/judgment of this Court referred to above.
Most strangely, the said first to the fifth respondents, who constitute the N.E.C of the 5th respondent and who strictly speaking are the one’s who should have reconvened that conference; are not before court today, the 3rd October instant to argue their point raised; of res judicata. All of them, including their counsel are not before Court to argue this point. They have not even filed any heads of argument in opposition of the application for their contemptuous behaviour.
Their none attendance of Court – including that of their attorney coupled with their failure to file any heads of arguments is a further indication of their disdain towards this Court to say the least.
This is more so because, among others, the respondents were; on the 27th September duly served with a notice of set down for the hearing of this application on the 3rd October 2011 at 8:30 a.m. This Court resumed to hear arguments herein, at around 2:40 p.m. but none of the respondents in question and their attorney were before court. This is unacceptable behaviour.
However, this Court could not be deterred from proceeding with the application as has originally been arranged. This it proceeded to hear because all indications are that counsel for respondents as well as the respondents have been made aware, formally about the date alluded to above for argument of this application.
Mr. Q. Letsika who appears herein on behalf of the applicant duly argued the application filed herein on behalf of his client. He took court through his submissions as therein laid out. Same are incorporated into this judgment.
It has already been indicated above that the said respondents one up to five who in actual factor are members of the National Executive Committee of the Basotho National Party, are aware, and know about the hearing date the 23rd June 2011. They have, even though they had filed their opposition, not attended court today for reasons best known by themselves and their attorney.
In fact and to be precise, the date stamp which has been imprinted at the bottom of the notice of set down and a copy heads of argument is that of the respondents’ current attorney who is operating under the names K.E.M. Chambers. There is therefore no reason why respondents’ attorney as well as the individual respondents are all not before court on this day, the 3rd October 2011.
Indeed, from the facts of this case and taking into account the none attendance of court by the attorney for respondents as well as that of his own clients, it can and it is abundantly clear that the respondents in question wilfully and also with mala fide decided to disobey a clear order of this Court.
In other words their neglect to obey this order of court can and is clearly inferred from their conduct. In particular, the respondents i.e. the members of the N.E.C. in the instant application have unlawfully and intentionally violated the dignity and or authority of this Court by deliberately, and with impunity refusing to obey by its order.
There is a plethora of authorities in this country where Courts of law have demonstrated what constitutes contempt of court.
Vide: Herbtein & Van Winsen – the civil practice in South Africa, 4th Edition – page 286
- Mosisili v. Ramainoane 1997-98 LLR 16 at 23 I-J
- Matiso and Others v. Minister of Defence 2005 (6) S.A. 267 at 271 at 271 B-G
The sad part about this is that, the said N.E.C. members are people who aspire to be political rulers of this country in future. It is therefore incumbent upon them to be exemplary for them to attract the confidence of the Basotho people who are the electorate. This is a sad situation indeed.
It is for the foregoing reasons that this Court has come to the conclusion that the said respondents, who are members of the fifth respondents’ N.E.C, and who have been ordered court to convene a lawful conference, have deliberately and with impunity violated and or refused to obey an order of this Court to convene another lawful conference.
They are all guilty of contempt of Court. Worst still, they have deliberately and intentionally refrained from attending Court to argue their case even though they have filed their notice of intention to oppose same and other related papers. They have, also been made formally and duly aware of the date for the prosecution of this application, but all of them including their counsel decided not to attend Court. They have themselves to blame.
The applicant’s application is therefore accordingly granted in terms of prayers 1, 2 and 3 of the notice of motion.
For Applicant - Mr. Q. Letsika
For first up to fifth respondents - No appearance
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