IN THE HIGH COURT OF LESOTHO
In the matter between:-
MAFA THIBELI 1ST APPLICANT
RAMOSHE MAUMO 2ND APPLICANT
RAMMAPANE MALEKE 3RD APPLICANT
TSOANELO RAMAKEOANE 4TH APPLICANT
TEBOHO SEKATA 5TH APPLICANT
NATIONAL EXECUTIVE COMMITTEE OF THE
LESOTHO CONGRESS FOR DEMOCRACY 1st RESPONDENT
LEADERSHIP CONFERENCE OF THE
LESOTHO CONGRESS FOR DEMOCRACY 2ndRESPONDENT
LESOTHO CONGRESS FOR DEMOCRACY 3rdRESPONDENT
Delivered by the Honourable Madam Justice N. Majara
on the 17th March 2011
The five applicants in this matter approached this Court on an urgent basis wherein per their prayers they seek relief in the form of a declarator or review in the alternative, as well as a final interdict against the three respondents. On the 3rd of February, when the parties (as legally represented) appeared before me, I granted them prayer (a) i.e., for dispensation as prayed for in the Notice of Motion by consent with the respondents. The substantive prayers call upon the respondents to show cause if any, why an order in the following terms shall not be made:-
(b) (i) Declaring that the resolution by 2nd Respondent held on 20th – 21st November, 2010 calling for a Special General Conference, is unconstitutional and therefore null and void.
(ii) That the resolution by 2nd Respondent held on the 20th – 21st November, 2010 calling for a Special General Conference be reviewed and set aside.
(c)Declaring the agenda for discussion at the Special General Conference unconstitutional and therefore null and void.
(d) (i) Declaring the circular dated 30th December by 1st Respondent issued under the hand of the Secretary General ultra vires the power of the 1st Respondent to the extent that it relates to the Special General Conference scheduled for the 19th – 20th March, 2011 and therefore null and void.
(ii) That the circular referred to at 1 (d) (i) above to the extent that it relates to the Special General Conference scheduled for the 19th – 20th March, 2011 be reviewed and set aside.
(e)Interdicting and restraining 3rd Respondent from holding a Special General Conference on the 19th – 20th March, 2011. (This particular prayer was initially for a temporary interdict but has since been amended and is now final in nature).
(f) Directing the Respondent to pay costs of this application only in the event of contesting same.
A brief summary of the facts that precipitated this application are that some time last year, 26 Constituencies of the 3rd respondent (LCD) petitioned the 1st respondent namely, the National Executive Committee (NEC) of the LCD to call a Special General Conference for reasons that are contained in Annexure LCD 2 (a) to the Founding Affidavit. The gist of the reasons for the requisition was that the said constituencies have no confidence in the NEC but for the Leader and Deputy Leader respectively.
It is common cause that the NEC rejected the requisitions for reasons that are stated in annexure LCD 3 (as translated). However, the requests of the constituencies and the response of the NEC were circulated to the 2nd respondent (the Leadership Conference of the LCD) on the 20th – 21st November 2010 as part of the agenda for discussion on the basis of which the latter passed a resolution that effectively accepted the constituencies’ request. The said resolution is contained in annexure LCD 1.
Pursuant to the resolution, i.e., annexure LCD 1, the NEC issued a circular namely, annexure LCD 4 calling upon all constituencies to send delegates to a Special General Conference at ‘Manthabiseng Convention Centre, Maseru scheduled for 19th – 20th March, 2011, hence the present application.
In terms of the 1st applicant’s founding affidavit at paragraph 5.8.1, the agenda for discussion thereat is:-
“the proposed motion of lack of confidence by 26 Constituencies in the National Executive Committee, but only from the Secretary General downwards, excluding the Honourable Leader and the Honourable Deputy Leader.”
I hasten to point out that this is admitted by the respondents per the contents of the answering affidavit deposed to by Archibald Lesao Lehohla.
It is also the case of the applicants that resolution 3 which is contained in Annexure LCD 1 does not and cannot authorize the 1st respondent to prepare for and/or issue a circular for a Special General Conference to discuss an agenda item whose purpose is to cause the 3rd respondent to do an unconstitutional act of dismembering the National Executive Committee as suggested and/or at all. Further that the resolution merely authorizes the 1st respondent to properly prepare for the holding of a Special General Conference as requested by the 26 Constituencies and that nowhere does it state the agenda to be discussed at such Special General Conference. The 1st applicant further avers as follows at paragraph 6.3 of the founding affidavit:-
“The agenda item runs counter to para (sic)8 of 1st Respondent’s responses in LCD 3. Rightly stated, a proposed vote of no confidence in some members of 1st Respondent and not others is an illegal and unconstitutional cutting of the umbilical cord between the 1st Respondent and the Leader and his Deputy.”
The applicants add further that one of the duties of the NEC is to ensure legality of party action and membership conduct by seeing to it that the constitution, laws and rules of procedure are adhered to and followed at party conferences. That the 1st Respondent’s circular, i.e., annexure LCD 4 causes the 3rd Respondent and its membership sitting as a Special General Conference to dismember the 1st Respondent contrary to articles 7.1.3 (d), 126.96.36.199 and 12.4 of the 3rd respondent’s constitution.
The deponent to the answering affidavit reacts as follows to the above averments at paragraph 6.1 in relevant parts:-
“…there is nothing unconstitutional with discussing the issue of lack of confidence in the members of the NEC from the Secretary General downwards by the conference. …it is the conference which has the power to discuss such issues only after such discussions will the conference then decide what to do. The conference has not been called for purpose of going to pass a vote of no confidence in the members of the NEC. It has been called for purposes of going to discuss the expression of lack of confidence in the members of the NEC from the Secretary General downwards. There is nothing wrong with members expressing lack of confidence and discussing that issue sitting as a conference. We have been legally advised … that discussing lack of confidence in some members is a different issue from passing vote of no confidence in the members. However when it comes to the issue of passing vote of no confidence in some members of the NEC to the exclusion of others, respondents have been legally advised … that article 188.8.131.52 of the Constituent (sic)of the party will have to be observed. If after the discussion contemplated on the agenda, the respondents are of the view that they have no confidence in some of the Executive Committee (sic)and they have to remove them they can only remove them by passing a vote of no confidence in the entire committee beginning with the leader down to the last man in as much as they cannot cut the umbilical cord between the leader and his deputy on the one hand and the remainder of the members on the other.”
The deponent further emphasizes the issue of discussion as opposed to the passing of a vote of no confidence in the subsequent paragraphs of his affidavit. He proceeds to make the following assertion at paragraph 6.3, in relevant parts:-
“This court cannot prevent members of the conference from discussing the issues, the court can only nullify an illegal passing of vote of no confidence after it would have been carried out if the court considered that it is contrary to article 184.108.40.206 of the constitution of the party. As matters stand now, no such passing of vote of no confidence has been undertaken. I therefore deny that the agenda is illegal and unconstitutional.”
These assertions are disputed in the replying affidavit wherein the deponent also avers that once convened Conference has to engage with the one and only agenda as it is a Special General Conference called for a specific business. He continues as follows in parts of paragraphs 6.1 and 6.3 respectively:-
“Conference is not a debating society or talkshop (sic)at which discussions are engaged in without any purpose of taking a definite course of action leading to a result. The discussion of a motion of no confidence is with the purpose of voting at the end for or against a motion. There is everything wrong with Conference debating an agenda which is not contemplated in the Constitution just for the sake of discussion or satisfying members (sic)intellectual curiosity. What is crucial is that Conference having convened for a special agenda cannot use the meeting to transact another different business which delegates and branches were not given notice of by the NEC. If the issue of dismembering the NEC does not arise as suggested by the deponent, then it is not worth the time and expenses of the party to have a Conference whereat members are not going to vote on the proposed motion. For the avoidance of doubt, I must state that delegates are enjoined to deliberate and vote on the proposed motion and no other issue.
The purpose of discussing the issue of lack of confidence raised by the 26 constituencies is to arrive at a point of voting in the proposed motion. It is not an idle discussion. The very motion is illegal and unconstitutional as what is proposed cannot be done. If it cannot be constitutionally done, it must not even be discussed.”
In my opinion, all the above averments and counter-averments contain the gist of the merits for determination by this Court. Connected to this issue of unconstitutionality is the question of the powers and functions of the 1st and 2nd respondents respectively but specifically with regard to the calling of the Special General Conference (Emergency).
In this regard, the 1st applicant deposed as follows at paragraphs 10.3, up to 10.4.2 respectively of his founding affidavit:-
“As I have earlier stated, a requisition for a Special National (sic)Conference by constituencies was made to the 1st Respondent per LCD 2. I verily state that 1st Respondent had no discretion but to implement the requisition without reference to the Leadership Conference, provided it was constitutionally defensible to do so.
Having adjudged that the requisition was unconstitutional, 1st Respondent correctly refused to accede to the requests of the constituencies, but erred by referring the matter to the Leadership Conference for consideration.
Upon receipt of the matter from 1st Respondent, the Leadership Conference was not competent to deal with it as the requisition had been made by constituencies; and the 1st respondent had already acted on it.
By passing Resolution 3 the Leadership Conference usurped the Constitutional role of the 1st Respondent in the matter. It also adopted the reasons of the Constituencies as its own for purposes of ordering the 1st Respondent to give effect to this resolution.
The Leadership Conference cannot receive nor deal with constituency requisitions for a Special General Conference. This is the constitutional role of the 1st Respondent and not shared responsibility.”
The respondents reacted to these averments as follows in terms of the answering affidavit especially at paragraphs 10.3 to 10.4 respectively:-
“I agree with contents hereof and that is why the NEC called a special conference.
I deny that the requisition was unconstitutional. For present purposes nothing turns on whether the requisition was referred to the leadership conference. The NEC was obliged under the constitution of the 3rd respondent to comply with the petitions.
… I also add that the 1st respondent had not acted upon the petitions as required by the constitution in as much as it had no powers to address the problem in the sense of preparing a response thereto. This was a matter to be addressed by the special general conference in terms of the constitution. The 1st respondent had the competence to refer the matter to the special general conference. Although it delayed to refer the matter to the special conference, on maturer (sic)consideration, 1st respondent then referred the matter to the special conference in terms of “LCD4”.
It is also common cause that the position of the 1st respondent with respect to the calling of the Special General Conference has hitherto been that it absolved itself of the responsibility to the calling of the special general conference on that basis and that it was merely implementing a resolution of the 2nd respondent and not doing so in the exercise of its powers per the contents of LCD 6 and paragraph 12 of the founding affidavit respectively as well as paragraph 12 of the answering affidavit.
Before I turn to deal with the above averments, the pertinent issues that arise, as well as the respective submissions in support thereof, I find it convenient to first consider the questions of law that were raised by the respondents in their answering affidavit and in their heads of argument.
The first point is that the applicants herein have not established their direct and real interest in the question of law for determination. As a starting point I should state that it is indeed trite and I respectively accept Mr. Mosito KC’s submissions that in order to succeed in the prayers sought, the applicants must satisfy the requirements of the relief sought mindful of and in respectful agreement with the authorities he referred this Court to in this regard. Thus, as has been stated in inter alia, the case of Family Benefit Friendly Society V Commissioner of Inland Revenue and Another 1995 (4) SA 120 (T) and other authorities referred to therein, an interested person entitled to apply for a declaratory order is one who has a direct and real interest in the question of law enquired into.
Counsel for the respondents made the contention that in this context, the onus is on the present applicants to show that they have a legal and proprietary interest in the case. It was his submission that the present applicants are neither part of the NEC members who are on their own version to face a vote of no confidence, nor do they have a direct and substantial interest in the question of law enquired into. Further that they are in no different position from the one in which the applicants for intervention in this case found themselves, per the judgment of this Court.
On behalf of the applicants, Mr. Mda made the submission that their legal interest is defined in paragraph 13.1 of the founding affidavit namely, to uphold the constitution of the party regardless of whether or not they are office bearers and that they have contractual obligations and rights to promote and protect the constitution. Further that the case of Maboella and Litjobo is distinguishable from the present one.
To this end, the 1st applicant describes himself at paragraph 1.2 of the founding affidavit, as a card carrying member of the 3rd Respondent and a chairman of the Mphosong Constituency Committee which is an organ of the 3rd Respondent. He adds:-
“As such I am duty bound, among others, to uphold the party constitution in terms of Article 12 (a) thereof. Therefore, I am entitled to bring this application and make this affidavit.”
The other applicants describe themselves in a more or less similar fashion. In addition, at paragraph 13 the 1st applicant avers as follows in relevant parts:-
“I have a legal interest in upholding 3rd respondent’s constitution. Consequently, I stand to suffer serious prejudice if 1st and 3rd respondents forge ahead with the preparations and holding of the said Conference in that:
(i) the concerted violation of 3rd respondent’s constitution by subjecting democratically elected members of NEC to an unconstitutional impeachment, interfere with my freedom of association as enshrined in the Constitution of Lesotho;
(ii) 1st Respondent’s intransigence in refusing to call of (sic)the forthcoming Special General Conference is creating instability within the Party; which is bound to be disastrous not only to 3rd Respondent but to the whole Country as the latter is a party in government.”
In this regard he is supported by his co-applicants in terms of the contents of their respective affidavits.
It is not debatable that membership of a political party or similar association is brought about by persons voluntarily coming together to form and/or join that association the result of which is that they are bound by the constitution thereof which is their contractual document and such a constitution enjoys supremacy over members and structures. There is a plethora of authorities in this regard. Against this position, the question that this Court has to deal with is whether the present applicants have locus standi flowing from a real and direct interest in the determination of the question of law.
As I have stated, Mr. Mosito made the submission that in the similar manner that this Court found that the applicants for intervention in the interlocutory case did not have a direct and substantial interest because they were members of the respondents, it should make the same finding with respect to the present applicants. In that case, I ruled that the applicants did not have the locus standi in the light of the fact that they averred that their interest derives from their being members of the Party and the Leadership Conference respectively, both which have been cited as parties to the proceedings, and that I was persuaded to accept the submission that their purported right is subsumed under those of the Party and is as such, not separate and distinct from that of the respondents and that their right being a political rather than a legal one, has no peculiarity about it.
In the case of Stadium Area Constituency No. 31 v Molapo Qhobela and 18 Others 1999 – 2001 LLR 997 the learned Justice Maqutu dealt with what is in my view an almost similar issue wherein he also made reference to my brother Mofolo J’s judgment in the case of BCP v Pakalitha Mosisili & Others CIV/APN/84/96. Whilst I am cognizant that the circumstances and/or facts pertaining to these three cases are not quite similar, it is my opinion that the principles that govern the Courts in the determination of locus standi are the same. I will come back to these cases later.
Coming back to the present case, the applicants seek relief against the 3 respondents and they aver that they are doing so in their respective capacities as members of the 3rd respondent. This in turn begs the question whether their situation is indeed similar to that of the applicants for intervention. In the application for intervention, I found that the Mokhotlong Constituency Committee and Others v Pakalitha Mosisili & 30 Others 1991 – 1996 (1) LLR 671 (HC) at 712 insofar as the two applicants sought to rely on itwas not relevant to the determination of the issue of their locus standi but that rather, that case would be more relevant to the present application.
Having said this, I find it convenient to incorporate my remarks therein when I quoted with approval the remarks of the Court in the Mokhotlong Case (supra) which in turn had aligned itself with the sentiments of my brother Monapathi J in the case of Leonard Ntsoebea v. Basotho National Party (CIV/APN/75/940 (unreported) in the following words:-
“I might also remark at this juncture that with reference to individual members submitting themselves to the party and entrusting to it the fullest power of dealing in the interests of the party; what the judgment envisages is that such interests will be intra vires of the party and not ultra vires of the power of the party and moreover, that in carrying out its duties Congress (in this case conference) will follow the letter of the constitution this court could never subscribe to the proposition that because individual members have surrendered their powers to the Party Congress or Conference they are thereby zombies and mummies never to raise their voices against unconstitutional acts of Congress or Conference.”
In placing my reliance on those sentiments, I, in turn, had stated as follows at page 9 of my judgment:-
“I do not think that anyone can dispute this statement. It is absolutely correct in my view. In other words, I also cannot envisage a situation especially within a constitutional democracy such as ours, where any person would be expected to sit back and do nothing where he feels that the highest decision making body of an organization he voluntarily associated with, is acting in contravention of and against the letter and spirit of the organization’s constitution and laws. Indeed such an individual(s) has the right to challenge such unconstitutional and/or illegal acts.”
In light of the above excerpt, I am of the view that emphasis needs to be made on the duty of a voluntary organization and/or its structures to respect and not act in contravention of its contractual obligations to the likely detriment of some or the rest of its members because such contravention would indeed be harmful or injurious to the members.
I might also venture to add that it is my view that an office bearer of a voluntary association such as the present 1st and 3rd respondent respectively, is not elected in that position for himself or to serve his personal interest but to serve those of the association. Their election is therefore an expression of the will of the members as their agents and this in turn calls for their removal to be done legally and constitutionally. For that reason, it is my opinion that the submission that the present applicants do not have the locus standi because they are not members of the NEC who may or may not be removed from office is flawed because the latter are appointed as such by the members of the party through the respective party structures and are therefore office bearers in their representative and not personal capacity, having been so elected in terms of the constitution. In other words, their election into office is an expression of the will of the organization as composed by its members.
These, my sentiments also find support in the remarks of De Villiers J.P. in the case Kahn v Louw, N.O. & Another 1951 (2) SA p 194 at 211 - 212 (quoted to this Court) in which he stated that:-
“The Constitution of a voluntary organization is the charter of the organization, expressing and regulating the rights and obligations of each member thereof. In relation to that organization, to the constitution of which he has subscribed, he is no longer a free and unfettered individual: he is a member bound by his agreement, and to that extent has surrendered his private individuality.”(my emphasis)
For this reason, if the members of the NEC do no challenge the fact of their possible removal from office, since they are there not as individuals but are representatives of the members, the rest of the members are not dispossessed of their right to do so because they are indeed all enjoined to protect and promote the party covenant namely, its constitution. As such, the sentiments I expressed in my judgment in the interlocutory application especially at pages 12 – 15 on which the respondents wish to rely in support of their submission should be construed in context account being taken of the different circumstances and/or situations of the applicants respectively.
It should be remembered that the interest of the applicants in the intervention application was found by this Court to be not distinct and separate from that of the party so that neither they nor any other members could be cited in their individual capacities once the party and its highest decision making body had been cited. As I stated therein, ‘that could create an absurdity where every member of the Party and/or body within the Party would apply to be joined and/or allowed to intervene in the proceedings yet their interest in the outcome derives from the very fact of their being members thereof’.
In casu,the applicants are suing the party itself and two of its highest structures pursuant to their contractual obligations, thus their circumstances are different and must be distinguished from those of the other two.
In support of the applicants’ case that they have the locus standi, reliance was also placed on the learned author’s statement in the Law of South Africa, 1st Reissue Volume I at p 322, paragraph 489 wherein he has this to say:-
“The resolutions of the management committee or of the general meeting are deemed to be the will of the universitas, provided that the resolution was made in accordance with the constitution or within the scope of authority of the management committee of the general meeting.”(my emphasis)
Thus, it is my finding that the test that was laid down by Corbett J (as he then was) in United Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) namely that in respect of the High Court’s power to make a declarator; ‘…it is generally accepted that what is required is a legal interest in the subject-matter of the action which could be prejudicially affected by the judgment of the Court’ has been passed by the present applicants because the appointment of members of the NEC is made by members and removal thereof can prejudicially affect their will as expressed in the election of the NEC members unless of course such removal or intended removal is done in accordance with the applicable party laws mainly, the constitution.
Having so found, I might add that the analogy of an employee whose contract of service is about to be terminated by the employer with another employee wanting to challenge same, that Counsel for the respondents sought to draw as being parallel to the present facts is flawed and without substance. The reason is simply that in the present case, we are dealing with members of a voluntary association who are bound by one and the same contract namely, the constitution thereof as opposed to a contract of employment which is an individual contract between each individual employee and the employer and thus entails different obligations peculiar to each employee as well as unconnected interests which have nothing to do with the rest of the workforce.
Thus, I accordingly find that the applicants’ case in so far as having established their locus standi passes muster and is in congruence with the guidelines and/or considerations that are stated in the cases of Preston v Vredendaal Co-operative Winery Ltd and Another 2001 (1) SA 244 (E) at 248H-249(E) and other authorities referred to therein.
I might also add that in my view the decision in Wilken v Brebner & Others 1935 AD 175 must be distinguished from the present case for the reason that in that case, the applicant was basing his claim for an interim interdict on the ground that the Congress of the Nationalist Party by a majority vote of the representatives present thereat had passed certain resolutions which per his averments were illegal. The Court per Wessels C.J. (as he then was) held inter alia at page 184 that:-
“When we consider that we are dealing with the constitution of a political party, it seems clear from the constitution that the individual member has abdicated to the various committees and to congress his individual right of determining what and what ought not to be done to further the political propaganda of the party. He has left it to the yearly Congress to say what the party thinks that the political conditions of the country require the party to do.”
I most certainly find no fault with these sentiments for the reason that under any democratic setting regardless of whether it is at the national or organizational level, the majority rules and the voices and opinions of the minority (no matter how sound and reasonable they may seem) will every now and then be drowned out by those of the majority. Such, is the nature of democracy, more especially where one voluntarily joins an association such as a political party. Naturally, where such a large number of individuals are associated, arriving at a general consensus is almost, if not totally impossible and there can never be any form of progress or action propelling the organization forward as well as realizing its aims and objectives were things to be done otherwise.
However, this in turn begs the following question; does this mean that by so subjecting themselves to the party machinery, individual members can never raise their voices against actions of the party structures even where they feel the said structures are acting in contravention of the very constitution that binds them together? It is my view that that cannot be what Wessels J meant in the Wilken v Brebner Case (supra) hence his initial remarks in the same judgment at p 180 where he stated as follows:-
“It may be at once accepted that whether the Nationalist Party is a universitas or a voluntary association the majority cannot act contrary to the express terms of the constitution of the party or ultra vires of the Congress, and if the constitution does not deprive the individual member of a say in the matter, then our law will assist him to see that no injustice is done to the minority. It is however essential to consider whether an individual member of the party or even several members of the party have the right to ask this Court to interfere with the resolutions of the Congress of the Party. The question whether an individual member has a right depends on the nature of the voluntary association and the terms of its constitution.”
My understanding of the learned Judge’s sentiments in this regard is that when all is said and done, individual members are subservient to the party and its structures in terms of the constitution for all intents and purposes, save where the party structures are perceived to be acting contrary to the laws and/or constitution of the party such as it is being contended by the applicants in casu.
I now proceed to consider the issue whether the applicants have satisfied the requirements of a final interdict which were laid down in the celebrated case of Setlogelo v Setlogelo 1914 AD 221 at 227 and which case has indeed been consistently followed in Lesotho as in the cases of Attorney-General and Another v Swissborough Diamond Mines (No.1) LAC 1995-1999 p 89 and Lesotho University Teachers and Researchers Association v National University of Lesotho LAC 1995-1999 p 661 quoted to this Court. These are; a prima facie right, an injury actually committed or reasonably apprehended, a balance of convenience in favour of the granting of the relief and the absence of any other satisfactory remedy.
With respect to the 1st requirement, I have already stated above that the applicants in casu have established that they have a legal right. It therefore stands to reason that they have satisfied same. As I have stated, such right derives from their contractual relationship with the party and its different structures as governed by the constitution. I need say no more in this regard.
With respect to the second requirement namely, an injury actually committed or reasonably apprehended, I have stated that members of the NEC are elected by the members of the party for its general good and welfare and not for or to serve their own personal interest. Thus, if it can be shown that their removal will not be done in terms of the contract, this in my opinion constitutes a reasonable apprehension of harm to the rest of the members or at least some of them, for the reason that as already stated, the party is run, managed and/or governed through democratic and legal means and election of members into office is the members’ constitutional right and a demonstration of their will and for these reasons it must not be arbitrarily tempered with.
On this second requirement, Mr. Mosito’s submission was that the applicants have not made any averment that there is a well-grounded apprehension of irreparable harm if the order sought is not granted. In reaction to this submission Mr. Sakoane drew this Court’s attention to the averments contained at paragraph 13 (1) (b) of the 1st applicant’s founding affidavit which reads in relevant parts:-
“I have a legal interest in upholding 3rd Respondent’s constitution. Consequently, I stand to suffer serious prejudice if 1st and 3rd Respondents forge ahead with the preparations and the holding of the said Conference in that:
(i) the concerted violation of 3rd Respondent’s constitution by subjecting democratically elected members of NEC to an unconstitutional impeachment, interferes with my freedom of association as enshrined in the Constitution of Lesotho;
(ii) 1st Respondent’s intransigence in refusing to call of (sic)the forth coming Special Conference is creating instability within the Party; which is bound to be disastrous not only to 3rd Respondent but to the whole Country as the latter is a (sic)party in government.” (emphasis mine)
These averments are disputed by the respondents in terms of A L Lehohla‘s answering affidavit. However, for purposes of determining apprehension of irreparable harm to the applicants, the issue at this stage is whether such a basis has been established. In my opinion, if there is a fear that the intended and/or possible removal might be done contrary to the party constitutional provisions, then that is a manifestation of a possible harm to those who wish to protect the constitution such as it is alleged by the present applicants. I however hasten to add that I am still yet to consider the validity of arguments for and against the suggestion that the 2nd respondent’s conduct i.e., by calling the Special General Conference in the manner that they did are valid and supported by the facts.
This being a prayer for a final interdict, I see no value in considering the third requirement namely, balance of convenience. With regard to the fourth one, namely availability of alternative remedy, it is my view that it should be considered with due regard to the interests of the party as a whole, inclusive of all its structures. Mindful of these factors, I am persuaded to find that due to the particular circumstances of this case, damages would not be an alternative remedy as it would not afford the applicants the relief that would protect the right which they approached this Court to protect, namely protection and promotion of the constitution.
I might also add that at this stage the Court is not necessarily expected to consider whether at the end of the case, the applicants will succeed to obtain the relief sought but rather, whether if they are to so succeed, there is another practical remedy available to them in light of the circumstances of this case. Bearing all these in my mind, I am persuaded to accept that the present applicants have satisfied this requirement as well and am thus enjoined to exercise my discretion in their favour and afford them a hearing.
I turn now to deal with what is in my view, the crux of the present case namely, the constitutionality or otherwise of the decision of the 1st respondent to call the Special General Conference. The nub of the applicants’ case is contained in inter alia, paragraphs 6, 10.4. 10.4.1, and 10.4.2 of the founding affidavit and may be summarized in the following terms:-
Resolution 3 (LCD 1 (a)) cannot authorize the NEC to convene a Special General Conference whose business is to debate a motion on a vote of no confidence with the view to unconstitutionally dismember the NEC by targeting the rest of the NEC members except the Leader and his Deputy;
By passing Resolution 3 the Leadership Conference usurped the Constitutional role of 1st Respondent in the matter. It also adopted the reasons of the Constituencies as its own for purposes of ordering the 1st Respondent to give effect to this resolution.
The Leadership Conference cannot receive nor deal with constituency requisitions for a Special General Conference. This is the constitutional role of the 1st Respondent and not shared responsibility.
The powers of the Leadership Conference to call a Special General Conference are like that of the NEC, subject to Constitutional control. The reason for the exercise of the power has to be the transaction of a constitutional, selective vote of no confidence in some of the NEC members.
A Special General Conference held at the request of constituencies does not need a resolution of the Leadership Conference; nor does the call for such a Conference by the Leadership Conference need the involvement of the NEC.
The response to these contentions reads as follows in relevant parts of the answering affidavit:-
“There is nothing unconstitutional with discussing the issue of lack of confidence in the members of the NEC from the Secretary General downwards by the conference. The respondents have been legally advised that it is the conference which has the power to discuss such issues only after such discussions will the conference then decide what to do. The conference has not been called for purpose of going to pass a vote of no confidence in the members of the NEC. It has been called for purposes of going to discuss the expression of lack of confidence in the members of the NEC from the Secretary General downwards.
This Court cannot prevent members of the conference from discussing the issues, the Court can only nullify an illegal passing of vote of no confidence after it would have been carried out if the court considered it is contrary to Article 220.127.116.11 of the constitution of the party. As matters stand now, no such passing of vote of no confidence has been undertaken. I therefore deny that the agenda is illegal and unconstitutional.
It is true that the 1st respondent indicated that it has no power to call a conference for addressing an unconstitutional issue. But we have been legally advised that a discussion of the reasons advanced by the constituencies and their respective loss of confidence in some members is unconstitutional.
The NEC has no power to oppose the passing of resolution 3 by the 2nd respondent.
The NEC is obliged to implement resolution 3.
The NEC was of cause entitled to draw the attention of the leadership conference to unconstitutionalities as it correctly did but it could not stand in the way of the leadership conference making decisions.
I aver that while the 2nd respondent could not have acted upon petitions by constituencies, it nevertheless had its own competence under the constitution to resolve that a special general conference be called. These it has done and nothing turns on the complaint that a similar request originally emanated from the constituencies. Even when the 2nd respondent had resolved on its own that the special general conference be called in terms of Article 5.2 of the constitution, the 1st respondent would still be obliged to call such a conference.”
It is against this backdrop that the question for consideration here is whether, by preparing for and calling the Special General Conference at the behest of the 2nd respondent the 1st respondent acted illegally and unconstitutionally. Inarguably, the answer is to be found in the constitution of the 3rd respondent whose fair translation has been provided to this Court for ease of reference. The translation has not been challenged and I find it convenient to place reliance thereon.
The powers and functions of the General Conference of the Party are spelt out insofar as this question is concerned, in article 5.1.3 (h) thereof which reads thus:-
“To hold elections of the National Executive Committee in accordance with the provisions of the Constitution.”
Whereas the powers and duties of the Leadership Conference are found under article 5.3.3 (e) as entailing amongst others:-
“To call for a Special General Conference if necessary.”
The procedure for the calling of the Special General Conference is provided for under article 5.2 of the Constitution and it reads as follows in relevant parts:-
“An emergency, Special General Conference may be called, through a resolution by the Leadership Conference that it be called, or if the National Executive Committee deems it necessary, or following a request from at least ten constituencies directed at the National Executive Committee of the Party through the office of the Secretary General. Such a request should give a reason or reasons for the calling of such conference.”
The powers and duties of the Special General Conference appear under Article 5.2.3 of the constitution and are stated thus in relevant parts i.e., paragraph (e) thereof:-
“to deliberate on a special issue that has been brought before the Conference by the National Executive Committee, which would be an issue from the General Conference of the Party, or the Leadership Conference, or the national Executive Committee or emanating from ten (10) constituencies, at least, following section 5.2 of the Constitution with its sub-sections.”
In turn, the procedure that governs the election and removal of the National Executive Committee the latter which forms part of the basis of the applicants’ case, is found under Article 18.104.22.168 and it reads as follows:-
“The National Executive Committee shall be elected into office for three successive years. An emergency Conference will have the powers to remove the committee from office before the end of the three year term, if that committee exhibits dangerous shortcomings detrimental to the Party.”
In invoking and basing himself on the contents of the above quoted provisions, the contention that Mr. Mda made on behalf of the applicants is that the NEC had rejected the requisitions in terms of LCD 3 by stating amongst others:-
“…no conference can be called for addressing an unconstitutional issue like this one; Lack of confidence in the Committee, from the secretary General downwards, separates the Leader from his committee as it is illustrated in section 7.1 of the party constitution and also as articulated by the judgment which is now a Lesotho law.”
The latter was explained to the Court as reference to the Mokhotlong case (supra). He added that by issuing the circular LCD 4 (as translated) which convenes a Special General Conference to transact an unconstitutional business, the NEC contravened Articles 7.1.3 (d), 22.214.171.124 and 12.4 of the Constitution of the Party respectively.
Mr. Mositoin turn submitted that this being an internal matter within the Party it must be left to the party to solve it itself. Further that the NEC has the power to call the Special Conference as was stated in the case of BasutolandCongress Party & Ano. V Qhobela & Ors (supra) per my brother Monapathi J’s remarks, as well as in terms of the sentiments that were expressed by the learned Maqutu J in the case of Stadium Area No. 31 Constituency v Qhobela and Others 1999-2001 LLR 997 at pages 1022-1025.
At first blush, the relevant constitutional provisions appear simple and straight-forward insofar as the powers, functions and duties of the different party structures are concerned. However, a proper scrutiny thereof reveals that though they may appear distinct and separate in nature, there are certain similarities and overlaps that may create some confusion with respect to their interpretation and proper application as evinced by the present political/legal quagmire that has landed the respective parties before this Court.
Per the applicants’ case, the 1st respondent erred in submitting to call the Special General Conference at the behest of the 2nd respondent when the former had taken the stance that the agenda for discussion thereat is unconstitutional. Their interpretation of the relevant Party Constitutional provision with respect to the powers and procedure for the calling of the Special General Conference is found in inter alia, paragraph 10.2 of the founding affidavit where the 1st applicant avers as follows:-
“The Party organs that may call for a Special General Conference are found under Article 5.2 as:
(a)the Leadership Conference (if it considers it necessary)
(b)the NEC (if it considers it necessary) and
(c) the NEC (upon requisition of the Constituencies)”
In response, the deponent to the answering affidavit averred:-
“I agree with contents thereof.”
That is however not the end of the matter, the 1st applicant ventures to add in the subsequent paragraphs i.e. 10.3 and 10.3.1 10.4.1 and 10.4.2 respectively:-
“As I have earlier stated, a requisition for a Special General Conference by constituencies was made to the 1st Respondent per LCD 2. I verily state that 1st Respondent had no discretion but to implement the requisition without reference to the Leadership Conference provided it was constitutionally defensible to do so.
By passing Resolution 3 the Leadership Conference usurped the Constitutional role of the 1st Respondent in the matter. it also adopted the reasons of the Constituencies as its own for purposes of ordering the 1st respondent to give effect to this resolution.
The deponent to the answering affidavit has this to say in this regard:-
“I agree with the contents hereof and that is why the NEC called for a special conference.
I deny that that the requisition was unconstitutional. For present purposes nothing turns on whether the requisition was referred to the leadership conference. The NEC was obliged under the constitution of the 3rd respondent to comply with the petitions.
The decision of the leadership conference does neither add nor remove anything from the fact that the 1st respondent still had to refer the issue to the special conference. it would have been contrary to the constitution of 3rd respondent for 1st respondent to have failed and/or refused and/or neglected to send the matter to the special conference.
I aver that while the 2nd respondent could not have acted upon petitions by constituencies, it nevertheless had its own competence under the constitution to resolve that a special general conference be called. These (sic)it has does and nothing turns on the complaint that a similar request originally emanated from the constituencies. Even when the 2nd respondent had resolved on its own that the special general conference be called in terms of article 5.2 of the constitution, the 1st respondent would still be obliged to call such a conference.”
In their respective assertions and contentions, the parties are agreed that a Special General Conference can be called by the 2nd respondent (upon consideration) or by the 1st respondent (upon consideration) or by the 1st respondent pursuant to constituencies petitions (at least 10). The real bone of contention is therefore the suggestion that the 2nd respondent should not have directed the 1st respondent to do so pursuant to the 26 constituencies petitions after the 1st respondent had declined to call a special general conference for the reason that the request was unconstitutional, whereas the respondents contend that even aside from such petitions, the 2nd respondent still has the power to do so.
In my view, since it is common cause that the 1st respondent had declined to call a Special General Conference for the reason that as the applicants stated, which fact is not disputed, the constituencies’ requests were unconstitutional because the vote of no confidence for discussion was not with respect to the entire NEC but only from the secretary General downwards, the Court has to consider whether the 2nd respondent had the power to direct that the conference be called regardless.
Once again, it is my view that the answer to this is to be gleaned from the constitution itself and logically when all the relevant provisions are read together and not separately or independently. I have already made reference to the powers and functions of the 2nd respondent in terms of Article 5.3.3 thereof. In terms of Article 7.1.3 (d), the functions of the national Executive Committee:-
“To ensure that the Constitution, law and bye-laws of procedure in the Conferences of the Party are adhered to.”
It is not denied that the 1st respondent had declined to call a Special General Conference for the reason that per the contents of LCD 4, the agenda was unconstitutional. Would it then be proper for this Court to find that that decision notwithstanding, the 2nd respondent could call the special general conference? In my view it is apposite for me to consider first the alleged unconstitutionality of the agenda which will in turn assist me in making a finding on the above question.
Under Item 8 of LCD 3 namely, the response of the 1st respondent to the issue titled and typed in bold capitals - LACK OF CONFIDENCE IN THE NATIONAL EXECUTIVE COMMITTEE, the 1st respondent stated as follows in relevant parts:-
“ALL THE TWENTY SIX (26) PETITIONING CONSTITUENCIES HAVE EXPRESSED LACK OF CONFIDENCE IN NEC MEMBERS EXCLUDING THE LEADER AND HIS DEPUTY.
The National Executive Committee is constituted by members as illustrated under section 7.1 of the Party Constitution. This list is headed by the Leader who is also the Chair of the Committee, to the last nominated member. Without the Leader or office of the Leader the committee is not legally constituted.
Let us recall the turbulent period we went through whilst in the BCP, which led to the formation of the LCD in 1997. There was a court case which had intended to separate the Leader Dr. Ntsu Mokhehle from other committee members of the then NEC. This case number CIV/APN/24/97 was heard in the high court of Lesotho by Justice Mofolo….”
The case in question is that of Pakalitha Mosisili and 3 Others v Dr Ntsu Mokhehle and 16 Others CIV/APN/24 /97. The rest of the contents make reference to and quote from that Court’s judgment. The above extract, suggests to me that this is not the first time the issue such as the main one in casu has been ventilated before this Court. I also pause here to observe that these kinds of challenges within political parties are quite common and to be expected.
Indeed, while basically brought together by common goals and policies, political parties like any other voluntary associations are comprised of men and women with different opinions, preferences, interests, egos and agendas. Naturally, due to all these, they are bound to find themselves headed on a collision course time and time again. Indeed, if this can happen in other type of relationship even one that involve two individuals such as in contract of marriage, what more with respect to one that comprise thousands of members with different characteristics including but not limited to the ones that I have mentioned. The multiplicity of decided case with respect to political party disputes, bear me out in this regard.
I also accept the contention by Mr. Mosito that such disputes should be resolved by the members these being internal party matters. However that remains an ideal, the reality being quite different so that where efforts in that regard have failed recourse will be sought from the Courts of law.
At any rate, I feel it would be remiss of me not to refer to the learned Mofolo’s judgment in my determination of the issue presently at hand. Whilst my perusal of the judgment reveals that this was not the only issue for the Court’s consideration, I find the following sentiments quite enlightening and noteworthy.
However, before I proceed to quote same, I find it convenient at this stage to digress a bit and go back to Archibald Lesao Lehohla’s answering affidavit in this regard so as to put the matter in its proper perspective. He makes the following assertions at paragraph 11.1:-
“I deny that the reason for the exercise of the power to cause a special general conference to be convened was unconstitutional. In any event I had already indicated above that the special conference has not been called for a selective vote of no confidence in some of the members of the NEC. It has been called for the discussion of the issue that has lead (sic)members of the constituencies to express lack of confidence in some of the members of the NEC.”
Coming back to the learned Judge’s comments at page 28-29 of the judgment, he stated as follows in relevant parts:-
“Nevertheless, the court takes the Leader of the Basutoland Congress Party as part and parcel of the National Executive Committee even should such a committee be a caretaker committee and for the time being as respondents are…. This court is not prepared to arrogate to itself powers lying outside its province and to cut the umbilical cord between the leader of the Basutoland Congress Party and its National Executive Committee even should the latter be such for the time being. Such a precedent in the scheme of things would be disastrous for constitutionality in this country.” (emphasis mine)
It was however, emphasized by Mr. Mosito that the agenda for the Special General Conference is not to pass but rather to discuss a vote of no confidence in the NEC, bar the Leader and his Deputy. Further that the applicants should have waited until such motion and/or vote is passed and only then would they have recourse before the Court in the event they wished to challenge same.
To my mind, this very submission suggests, and strongly so, that the respondents concede (albeit grudgingly) that the passing of a vote of no confidence at that forum would be unconstitutional hence, a lot of emphasis was made on the term to discuss ‘tsohla’ the issue. For the avoidance of doubt I refer back to the contents of paragraph 6 of the answering affidavit in parts and insofar as they are relevant to this question. Therein the deponent avers as follows:-
“…discussing lack of confidence in some members is a different issue from passing vote of no confidence in the members. …the issue of dismembering the NEC does not arise at the level of discussion of lack of confidence in the members. However when it comes to the issue of passing vote of no confidence in some members of the NEC to the exclusion of others, respondents have been legally advised … that Article 126.96.36.199 of the Constituent (sic)of the party will have to be observed. If after the discussion contemplated on the agenda, the respondents are of the view that they have no confidence in some of the Executive Committee (sic)and they have to remove them they can only remove them by passing a vote of confidence in the entire committee beginning with the leader down to the last man is as much as they cannot cut the umbilical cord between the leader and his deputy on the one hand and the remainder of the members on the other.” (my emphasis)
As it can be seen, by the respondents’ own admission, passing a vote of no confidence at the impending Special General Conference would be illegal and unconstitutional. This in turn takes me to the argument this is not what is going to happen at the Conference but rather only a discussion of the expressed lack of confidence will take place and that in the light of this fact the applicants should have waited for the vote of confidence to actually be passed before they could come crying foul before this Court.
Counsel for the applicants countered as follows in his written submissions:-
“It being common cause that the agenda for the Conference as defined by the NEC in LCD 4 (a) is unconstitutional, the issue is whether it is amenable to being amended to either cure the illegality or accommodate the suggested discussions and possible motion of removal of the entire NEC and re-election of another committee.
Inherent in the semantic trickery that the Constitution does not debar members from discussing reasons of an unconstitutional motion; implies and wrongly so, that there is a water tight compartment between discussion and voting on a motion.
There is no special magic in the words “proposed motion” as used in LCD 4. The word motion bears its ordinary meaning in regard to meetings viz a formal proposal that is discussed and voted on at a meeting.”
That in addition, the only agenda for discussion at that conference is the proposed motion of lack of confidence by 26 Constituencies in the National Executive Committee excluding the Leader and the Deputy Leader and that in terms of the constitution the NEC as the convening authority is the one that prepares for the Conference by giving due notice of the agenda and that any other discussion and resolutions on matters not included in the agenda is invalid.
LCD 4 (a)which is the translated version of LCD 4 spells out the business of the Conference in the following words:-
“At this Conference, the agenda for discussion is the proposed motion of lack of confidence by the twenty six (26) Constituencies etc.”
Taking all these factors into account, especially in the light of the concession they made with respect to the unconstitutionality of the agenda, it is my view that the respondents bore the onus of establishing that the 1st respondent has powers under the Constitution to call a special general conference to discuss same whether on its own motion or at the behest of the 2nd respondent. In the light of the fact that the constitution spells out the different powers, duties and functions of the two party structures, I am persuaded to accept the submission that there is no express or implied power entitling a special general conference to debate and/or discuss reasons in vacua or to side-step the agenda put before it in terms of article 5.2.3 (b) of the Constitution.
In addition, a Special General Conference is indeed an emergency. I therefore cannot imagine the calling thereof as being meant for a mere ventilation of concerns as its sole purpose without the intention to take decisive action thereon. In my view, to allow that, would be to promote a culture that is not only foreign to but is also not envisaged by the Constitution in the inclusion of a provision that permits the taking of such drastic an action. To find otherwise would in my view be tantamount to sanctioning the calling thereof, extra-ordinary in nature, willy-nilly and for the flimsiest (for want of a better word) of reasons.
As Article 188.8.131.52 provides, the NEC’s tenure of office is three successive years and an emergency Conference will have the powers to remove the committee from office before the end of that period if that committee exhibits dangerous shortcomings detrimental to the Party. Certainly, reference herein is to the entire committee as a collective and not for removal of only some of its members. Thus, accepting that the calling of the special general conference to merely discuss what is admittedly an unconstitutional agenda as opposed to a passing of a vote of no confidence is not illegal would be unnecessary splitting of hairs, a contradiction in terms and a costly exercise to the entire party and as such, incompetent. In the result, I am persuaded that the said calling should indeed be declared to be ultra vires the provisions of the Party Constitution and as such null and void.
It therefore stands to reason that for these very reasons, the contention that the applicants had to wait until the vote of no confidence had been passed before they could approach the Court has no substance, not to mention its potentially drastic political ramifications namely, to wait for an injury to occur and complain after. At any rate, reasonable apprehension of harm is one of the requirements of the common law remedy of interdict which the applicants sought under prayer (e) of the Notice of Motion which means that they did not have to wait until the harm has actually occurred.
Furthermore and by the same analogy as above, a similar issue was dealt with in the case of Takatso Ramakhula & 6 Others v Makhetha Mosotho & 24 Others CIV/APN/406/09 (Unreported) where the Court had this to say at paragraph (11) of page 7 :-
“It may be fairly surmised that the main purpose of providing for a special general conference during the 4 year term is to address pressing administrative issues and for LABA’ general efficacy; and no interpretation of the LABA constitution, no matter how generous, how permissive or how benevolent can endow the special congress with powers otherwise vested in the Ordinary Congress.”
Over and above this, the only other means of dealing with individual members of the NEC are spelt out under Article 12.4 of the Constitution in whose terms the Leader of the LCD is vested with the power to suspend any member thereof whose work is found to be unsatisfactory as the case may. As it can be seen, even such powers are not of removal but only of suspension. If all these powers and functions are so definitively spelt out, there is in my view merit in the suggestion that the Constitutional provisions should be given their ordinary meaning and no other.
Authorities are legion and it cannot be overemphasized that, being a voluntary association members of a political party are bound together by a contract which is usually the party constitution from which arise contractual obligations. I cannot argue with this principle but can only respectfully align myself with the sentiments expressed in amongst others, the case of Tilak Karunaratne v Mrs Sirimavo Bandaranaike & Others (1993) 2 Sri L.R. page 112 wherein the Supreme Court by its majority stated as follows inter alia:-
“If for instance, the party gives a direction to a member in direct violation of a fundamental policy of the party, is that member meekly bound to obey such a direction?; or if the party gives a direction to a member in flagrant violation of a term of his contract with the party, is such a member expected to tamely submit to the direction? I am unable to subscribe to a proposition which tends to devalue the nature of the contractual bond of a political party vis-à-vis a member….”
It is on the basis of all the foregoing reasons that I am constrained to apply the trite principle stated in the case of Plascon-Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 E – 635 C in which theCourt, per Corbett JA stated thus in relevant parts:-
“It is correctthat, where in proceedings on notice of motion disputes of facts have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.”
It should be remembered that the facts in casu are common cause and that the main issue is the interpretation of the relevant constitutional provisions so that the Court has to concern itself only with the latter part of this rule.
Lastly, in the circumstances of this case, and having found that the Special General Conference was indeed called illegally and unconstitutionally to the extent that the motion of no confidence is only with regard to some and not all the members of the NEC, I did not deem it necessary to consider the issue whether the powers and functions of the 1st and 2nd respondents as they are set out under Article 5.2 should be read conjunctively or disjunctively.
In the premises I find that the applicants have successfully made out their case and I accordingly declare that the resolution by 2nd Respondent calling for a Special General Conference and the agenda for discussion thereat is unconstitutional and therefore null and void. I also grant prayers d (i) and (e) as they are stated in the notice of Motion.
I further award costs to the applicants including those consequent upon the employment of two Counsel.
For the applicants : Mr. Z Mda (with him Mr. Sakoane)
For the respondents : Mr. S Phafane KC (with him Mr. K Mosito
KC and Mr. P Tsenoli)
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