IN THE HIGH COURT OF LESOTHO
In the matter between:
RETHABILE MARUMO 1ST APPLICANT
RAMAHOOANA MATLOSA 2ND APPLICANT
TŠOEU MOKERETLA 3RD APPLICANT
NATIONAL EXECUTIVE COMMITTEE
LESOTHO CONGRESS FOR DEMOCRACY 1ST RESPONDENT
LESOTHO CONGRESS FOR DEMOCRACY 2ND RESPONDENT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 09TH DAY OF SEPTEMBER 2011
1 – PARTIES IN THIS MATTER
A - APPLICANTS:
The 1st applicant is HONOURABLE RETHABILE MARUMO.
Card holding member of the ruling party – LESOTHO CONGRESS FOR DEMOCRACY. She is presently a member of Parliament for the MOHOBOLLO CONSTITUENCY– No 12. She joined the Parliament of THE KINGDOM OF LESOTHO on LCDcard. In other words, she could be said to have flown LCD– “the bird” to this Parliament. She has come before this court because she is flying the flag of LCD.
The 2nd Applicant is RAMAHOOANA MATLOSA. He is an adult MOSOTHOmale of MASERU CONSTITUENCYNo. 32. He is the Chairman of the YOUTH LEAGUEin that MASERU CONSTITUENCYNo. 32. He is an ex-officio member of the constituency committee thereat.
The 3rd Applicant is HONOURABLE TŠOEU MOKERETLA, a member of Parliament representing MASHAIConstituency No 76. He too came to Parliament on LCD card and/or flying “the bird”. He is an ex-officio member of MASHAI No 76 Constituency Committee.
All the applicants conclude their personal descriptions and/or their purported legal standing before this court by pointing out that they are card carrying members of LCD Party. In terms of the said party’s constitution, in particular article 12 (a) thereof they have a duty and responsibility to uphold the party’s constitution. It is alleged, according to them that it is on the authority of their membership of the party, that they feel entitled to bring this present application before this court against the party. In other words, it is their membership of the party which gives them the leg to stand on against their party before this court. The other personal descriptions e.g. ex-officio member of constituency committee, MP, Youth League Chairman etc are but just added decorations of no or little significance to their legal status before this court. They are mere embellishments which take the applicants case no farther.
B – RESPONDENTS
There are two respondents.
The 1st respondent is the NATIONAL EXECUTIVE COMMITTEE [hereafter referred to as NEC] of THE LESOTHO CONGRESS FOR DEMOCRACY.
The 2nd respondent is LESOTHO CONGRESS FOR DEMOCRACY[hereafter referred to as LCD].
NEC is a body established in terms of article 7.1 of the constitution of LCD. Its function and main purpose is to run and manage the affairs of LCD as a political party.
The [LCD] - 2nd respondent in this matter is the political party duly registered in terms of the SOCIETIES ACT NO. 20of 1966 and the NATIONAL ASSEMBLY ACTNo 10 of 1996. The main office or principal place of business of LCD is in the city of MASERUat the Cathedral Area.
RELATIONSHIP OF THE PARTIES:-
From the description of the parties a clear and complete picture that emerges is that - this is the internal matter. [That is to say, - it is the squabble inside the family!] It is the party members who have risen up against themselves and/or against their own party and/or against each other in that party.
2 - WHAT EXACTLY IS THEIR PROBLEM?
From the perusal of the papers filed of record in the two applications which were placed before High Court this year - CIV/APN/54/2011and CIV/APN/213/2011, some members of the party - LCDdo not want the NECto convene and hold a Special General Conference [hereafter referred to as SGC]. Some party members want the SGCto be convened. NEChas found itself in the dilemma of facing different requests from some of the party members. These opposing requests come to NECat almost one and the same time. This necessarily places NEC in a difficult situation. It places a definite demand on NEC’s mind to stop and think what to do in these circumstances.
[Do you know or recall the story of the man and his donkey?]
The man was riding a donkey. His son was walking along besides the donkey. Someone appeared, and remarked “What a cruel man that you are! - Addressing the man on the donkey. You are riding a donkey while your poor, poor little boy is walking along - besides you! Why don’t you get off and let your son ride instead. He got off his donkey and put the son on the donkey. They proceeded. They met the second man. This second man found it abhorrent that a grown man should be walking while the little boy is riding. He remarked accordingly. He advised that they both [father and son] ride together on the donkey. They complied. They then proceeded.
The father and his son riding together on the donkey. They had not gone anywhere when the third man appeared on the scene and expressed his horror at their cruelty. How can they both of them ride on the poor poor donkey! What a shame. He advised them to get off the donkey. He ordered them to carry the donkey on their shoulders. Could they? This NEC of LCD appears to have in its hands the same kind of a dilemma. They are requested to hold SGC. When they arrange and prepare to hold it, they are told to stop forthwith from doing the same. NEC is taken to court in order to stop the process. Even before the dust settles down immediately when the judgment is pronounced, new proceedings of the present application are started. NEC is now to be forced by an order of court, this time to convene and hold SGC. The moves to launch the present application were commenced while the case in CIV/APN/54/2011 was still before court and not yet heard. It would appear that the factions were racing to court. It was a question of who gets there first. As in all races, there is someone who is faster than the other. The problem of this political family must be a political one. I may be wrong, but I doubt it. If it is a political problem, why do parties search for the political solution at the courts? Has there ever been a legal solution for a political problem? Court orders never mend division or cracks in the political party. Again I may be wrong but I doubt it. Politicians look for the solutions for their political problems at wrong places. What chances are there for finding those solutions? Have a guess.
Taken exactly as set out in the APPLICANTS’ Heads of ARGUMENT document it is as follows:-
“That NEC be directed to organize or arrange for the SGC of LCD – pursuant to the petitions filed by the 17 constituencies. [My underlining] SGC should be convened to deal with two issues:
Firstly, to deliberate over the issue relating to lack of confidence in the NEC.
Having deliberated , and/or after deliberating the issue, the SGC must now resolve that issue of lack of confidence in the NEC. The next item in the agenda will be the election of the National Treasurer of LCD.
In the resolution of the issue of lack of confidence in the NEC, there must be a result. What is the result? Prior to the deliberations and resolution nobody can tell what the result will be. Whatever the result, the next item on the agenda of this SGC will be the election of the treasurer of LCD. If the vote of NO confidence in the NEC is passed, there will be no NEC. The election of the Treasurer will then provide only that one member of the NEC. But if the vote of no confidence in the entire NEC is unsuccessful, the new member in the form of the newly elected treasurer will join the rest. Which of the two scenarios will obtain? My guess is as good as yours.
According to the applicants the NEC is refusing to convene the SGC for various reasons. It is the applicant’s case that those reasons put forward by the NEC, have no substance. Even on the papers of the applicants there is no clear answer that supports the allegation that NEC is refusing. Even the past events e.g. CIV/APN/54/2011had to be filed to restrain the NEC from convening and holding SGC. That accusation, that NEC is clearly refusing to convene and conduct SGC is not quite accurate, if all the surrounding circumstances are taken into consideration. NEC had actually taken steps to convene the SGC when the process was stopped by a court order.
It is a further case of the applicant that the NEC has no power to question the validity of the reasons for requesting that SGC be held. NEC should act as an automaton. It is not equipped with the mind of its own. Or even if it has the mind of its own, it is obliged never ever to use its mind. It must just act as requested without any consideration as to the proprietary of its actions whatsoever. This was because NEC had indicated that it is waiting for the conclusion of the matter it was defending before the High Court CIV/APN/54/2011, before it can respond to the request. Is it unreasonable for NEC to request to be left alone for a little while to think of what to do in the light of the court action so as to avoid repeating the same mistakes which led to the first court action in CIV/APN/54/2011?
There is a vacancy caused by the resignation of the Treasurer of the party. This is in the common cause. This must be filled as soon as possible. On this point too parties agree. The applicants claim that the NEC is refusing to call and hold SGC for the purpose of electing a new Treasurer. These issues are to be dealt with by the SGC – that is:– (1) Firstly the lack of confidence in the NEC and (2) Secondly the election of the treasurer. The issues to be dealt with at SGC must be of great interest to all members of LCD – not just the three applicants. If so, where are the other members of LCD?
The respondents’ case first of all is based on the POINTS OF LAW.
(i) That there is no urgency ex-facie the papers presented before
court by the applicants.
(ii) That the applicants have no locus standi
(iii) That the case presented by the applicants before this court,
discloses no cause of action.
ON THE MERITS it is the respondent’s case that the requirements for the calling of the SGC have not been met. The requirements are set out in the constitution of LCD. Those – requirements have been totally or partially ignored.
The dismissal of this application is asked for on those grounds.
3 – FACTUAL BACKGROUND
It is in the common cause that REQUEST that were addressed by 26 constituency committees, were sent to and received by the Secretary General of the party – LCD.
NEC was initially reluctant to accede to the request to call SGC.
- After the intervention of the leadership conference NEC acceded to the request.
(a) A circular was issued out – calling for the holding of the
SGC on certain specific dates.
(b) Preparations were underway for the holding of the SGC.
(c) CIV/APN/54/2011was filed with this court. The Rule NISI
obtained in that application put on halt the process
and the preparations to convene SGC.
The applicants in that application sought and were granted an interdict. The relevant portions to the present application of the order made then in CIV/APN/54/2011are:–
(a) That the rules of this Honourable Court relating to notice and service be dispensed with and the matter be heard on urgent basis.
(b) Interdicting and restraining 3rd respondent (LCD) from holding a Special General Conference on the 19th – 20th March, 2011.”
In the final order the applicants therein obtained the confirmation of the following prayers:- [Page 41 of Honourable Madam Justice N. MAJARA’S judgment of CIV/APN/54/2011.]
“I accordingly declare that the resolution by 2nd respondent [who was then leadership conference of the LCD] calling for Special General Conference and the agenda for discussion thereat is unconstitutional and therefore null and void. Also the circular issued under the hand of Secretary General dated 30th December by the NEC is ultra vires the power of the NEC to the extent that it relates to the SGC scheduled for the 19th – 20th March 2011 and therefore null and void.”
The resolution by the leadership conference of LCD was declared unconstitutional therefore null and void. This resolution was calling for SGC and had set out the agenda to be followed and issues to be resolved. Before this court in the present application, the applicants want the NEC to convene SGC to discuss and resolve the same issues and the same agenda items that were initially to be dealt with in the SGC scheduled for sometime in March 2011
The CIV/APN/54/2011was filed with this court on 21/01/2011
The judgment was delivered on the 17th March 2011.
It seems events were being moved pretty fast thereafter. Those members of the party (LCD) involved in the pushing of these events never stopped even for one second to take one deep breath and look around to see if “all was well”. It would seem the NEC needed some time to read and study the judgment delivered in respect of CIV/APN/54/2011 especiallybecause it was their actions that caused the applicants in that application to take them to the High Court. There was definitely a need to understand properly and appreciate the consequences and effect of the judgment. There must have been a need to take care not to repeat the same mistake complained of. The present applicants in this matter had no patience. According to the present applicants in this matter NEC does not need to stop and think. It is obliged just to do as requested without any considerations of its own. What sort of an entity is that, which acts without thinking? These days even machines think before acting. Have you had problems with your PC when you were being dictatorial? There is nothing that can be forced to act without thinking especially an entity such as NEC which consists of a number of human beings with different minds of their own.
On the 28/04/2011, this present application under consideration was filed with this court. The court was approached by way of an urgent application with a certificate of urgency issued out by Adv KANANELO E MOSITO K.C.
I intend to quote it in full. The grounds for the issuance of the said certificate of urgency were, in accordance with the decision of the Court of Appeal in Commander LDF and Another V MATELA 1999 – 2000 LLR and LB, to be set out on the certificate. There are no grounds of urgency on this certificate. The perusal of the certificate reveals none.
“CERTIFICATE OF URGENCY
KANANELO E. MOSITO
Do hereby certify that:
I am an advocate of this Honourable court by lawful authority duly admitted and practicing as such in the courts of law of this Kingdom. I am also a King’s Counsel
- 2 -
I do hereby certify that I have read and considered the present application and bona fide am of the view that this application is one deserving of urgent relief. I would therefore request this Honourable court to treat this matter as one of urgency on the following grounds:
1. The 1st respondent is clearly refusing to call a special general conference as requested by the 17 constituencies in stark violation of the constitution of the 2nd respondent to the prejudice of the applicants as members of the 2nd respondent.
2. The 1st respondent continues to violate the constitution by not calling a special general conference for purposes of re-filling the position of Treasurer of the 2nd respondent contrary to the terms of the constitution of the 2nd respondent which constitutes the contract between all members of the 2nd respondent.
I therefore certify that on the above reasons this court should treat this matter as one of urgency and to ensure that justice according to law is observed in the Kingdom.
DATED AT MASERU THIS 25TH DAY OF APRIL 2011.
AVOCATE KANANELO E. MOSITO KC”
He does not give reasons why the applicants claim they cannot be afforded substantial relief in a hearing in due course.
What should be set out and established by the applicant who approaches the court by way of an urgent application is that he or she cannot be afforded substantial relief in a hearing in due course if the periods presented by these Rules were followed. The applicant is required to give reasons why he or she could not be afforded substantial relief, in due course. The applicant must give reasons why the matter is allegedly urgent. HIGH COURT RULES, Legal Notice No. 9 of 1980.
There are three points of Law taken by the respondents in the present matter. Looking at the certificate issued by Advocate KANANELO MOSITO K.C. The first point that must be raised is that of urgency. According to the respondents the perusal of the papers filed of record by the applicants there is no sign or an indication that this matter is urgent. In terms of our High Court rules 1980 in particular RULE 8 (22), there are particular and specific requirements that must be met by the applicants who approach the High Court on the basis of urgency. Rule 8 (22) provides:
“22 (a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner in accordance with such procedure as the court or judge may deem fit.
(b) In any petition or affidavit filed in support of an urgent application, the applicant shall set forth in detail (Firstly) the circumstances which he avers renders the application urgent. And Secondly, he must also “give“ the reasons why he claims that he could not be afforded substantial relief in a hearing in due course if the periods presented by this rule were followed.
(c) Every urgent application must be accompanied by a certificate of an advocate or attorney which sets out that he considered the matter and that he bona fide believes it to be a matter for urgent relief.”
This application does not comply fully with the requirements that are set out in RULE 8 (22) High Court rules 1980. It is mandatory that in an affidavit filed in support of urgent application, the deponent thereof must set forth in detail circumstances which he avers renders the application urgent. LUTARO V NUL 1999 – 2000 LLR and LB at page 52There are no circumstances, detailed or otherwise which the deponent of this supporting affidavit avers renders this application urgent. In LUTARO V NUL [SUPRA]the court of Appeal held that the Founding Affidavit did not disclose any urgency contrary to the requirements of the Rule 8 (22) (b) of the High Court Rules. The deponent of the Founding Affidavit in this application has in fact averred that he did not launch the application early because the court was on Easter Holidays. Courts do not go on holidays as long as the matters presented to it are urgent. It is the applicant himself who has made the decision already that this matter is not urgent. He deliberately postponed approaching the judge to ask that the matter be dealt with urgently because he was on Easter Holidays – not that there was no judge or court that can and/or should deal with urgent applications. He did not only have consideration to delay but he actually took steps to wait. He deliberately delayed until after Easter holidays.
In the second place, there are no reasons in the founding affidavit, which have been given by this deponent, showing the court why he claims that he cannot be afforded substantial relief in a hearing in due course. These reasons and circumstances must be set out in the founding affidavit LUTARO V NUL LLR & LB 1999 – 2000. The founding affidavit has failed to disclose any urgency. THE COMMANDER LDF & Another V MATELA. The authorities have gone even further to strengthen and make the requirements to move urgent application more stringent. In addition to the circumstances and reasons set out in the Founding Affidavit, the advocate and/or the attorney who issues the certificate of urgency must also give grounds and/or reasons for his or her bona fide belief that the matter requires urgent relief. The belief that the matter is urgent, does not fall just like magic, or fall magically upon the advocate and/or attorney. The urgency is brought about by circumstances not of the party’s own making. In our present case what grounds have Mr Mosito K.C. averred that gave him that belief. There are no grounds. The papers are dead silent on the grounds and /or reasons which make this application urgent. The issuance of the rule nisi plus even putting the parties to terms of filing of their papers does not per se make the matter urgent in terms of our rules. The agreement of the parties as regards the filing of their papers does not make or change the rules. Even the issuance of a rule Nisi by the judge does not close the door for the challenge that the papers filed of record, do not comply with the requirements of Rule 8 (22) High Court Rules 1980.
The agreement by the parties to move fast does not dispense with the requirements set out in the rules. It is always at the hearing of the matter for the confirmation of the rule nisi that the determination whether or not the matter is urgent is made. The Honourable MOFOLO AJmade no final order that this matter is urgent. He made only an interim order - whose confirmation is now being argued?
Let us for an example have a look at CIV/ APN/54/2011. Compare the certificate issued thereat by Zwelake Mda and paragraph 13 of the Founding Affidavit, with which the certificate is aligned. There is an expressed apprehension of something undesirable that is like to happen if urgent action is not taken. This is an interdict but even thought it is in a form of mandamus, it is still intended to prevent some unpleasantness. Have the applicants in this matter expressed in any form the fear of prejudice which they are likely to suffer if the matter is not dealt with urgently? No.
The applicants in this matter although they approached the court on the basis of urgency, they have not in their papers indicated why if the matter was urgent, they did not approach the court at the same time as the applicants in CIV/APN/54/2011 or at least in hot pursuit. The agenda and the issues that were to be dealt by the SGC are the ones which that application CIV/APN/54/2011 was intended to frustrate. These applicants then may be did not see the urgency. They waited. The party should not create or participate actively or passively to the creation of urgency if the party wishes to rely on urgency in its application. The applicants did not only let days pass- by but even in their papers which they filed with the court under the pretext that the matter is urgent, they did not give reasons or set out any circumstances which would prejudice them if the matter is not treated as an urgent one. They made no attempt to meet the requirements of rule 8 (22) High Court Rules 1980. In fact they give reasons why they deliberately delayed to bring the matter to court – by waiting for Easter holidays to end.
It is the averment of the deponent of the Founding Affidavit that they could have come even earlier had it not been that 22nd to 26th were public holidays and courts were on an Easter recess. [My underlining] If the matter is real and truly urgent there are no considerations such as those expressed by this deponent. Urgent applications are moved any time when there is need for an urgent relief. The consideration such as the one expressed by the deponent of the Founding Affidavit at paragraph 10, clearly shows that urgency in this matter is of his own making and therefore not genuine. He had already made judgment that the matter is not urgent enough to be moved during Easter public holidays. Urgent applications have been moved at night and on Sundays when there was a genuine need for an urgent relief. The party cannot be heard to say that because of its own procrastinations and/or hesitations, he or she should be allowed to move the application urgently after his own deliberate hesitations and procrastination to take immediate action.
In some instances the case may be dismissed on this ground alone. CIV/APN/204/2003Morienyane v Morienyane Proceeding urgently in this matter on the papers filed of record was totally unwarranted.
The circumstances surrounding the manner in which these applicants conducted this matter, though allegedly urgent leave a lot to be desired. The judgment they were waiting for was delivered on the 19th March 2011. They waited a day, two days, three days etc until finally the 11th of April 2011 when the letter of demand was written. Their expressed expectation was that the reply should reach them at least after 7 – 8 days. Could the urgency of the matter up to this point have stopped? May be the matter had not yet started to be urgent. When did it become an urgent matter? From the papers it appears the application was filed on the 28th April 2011. How many days had lapsed since the 19th March 2011? A delay of even one day removes that cloak of urgency, let alone one week. Is this not an abuse of the process? That is why in some cases where there is as gross abuse of the process as this one, the matter is thrown out.
Urgency – What is it? - Means requiring immediate action. There is always, at all times a judge on duty for dealing specifically with urgent matters. Why? Because they require immediate action. That is why. There is no time when there is no judge on duty for especially urgent matters. There is no Easter, Xmas, Sundays and/or Saturdays as far as urgent matters are concerned. Judges have been woken up at midnight or immediately after midnight when the need for an urgent relief was required. It is not correct that this application was delayed by Easter holidays. It was delayed by applicants themselves. If the applicants themselves decided that they cannot during Easter Holidays disrupt their rest, it is because there was no need to seek urgent relief. Yes the courts were not working but there was a judge on duty to deal specifically with matters which are urgent.
Recently I dealt with an urgent matter where Mr Tšenoli approached me on Saturday afternoon. I was at home when I was called to deal with an urgent application where a restraining order was issued out by me when the courts were not sitting. There was no court sitting that Saturday afternoon. The respondent took offence and continued to harass and/or threaten his girl friend whom he attempted to kill by shooting at her and those in her company. Thereafter he shot himself. Perhaps satisfied that he has done his job – not knowing that he is the only person who has been killed. Everybody survived the attack except the late Telukhunoane - who was the gunman. This is a notorious fact in Maseru or in the whole of Lesotho. This attack happened at about 7 p.m. at my sister judge’s residence – Madam Justice N. MAJARA. Even if we do not all have experienced dealing with urgent applications at awkward and/or odd times the law reports bear me witness. During the military regimes here in this Kingdom the former Chief Justice Cullinun was approached at midnight or thereabout to deal with urgent application of those individuals who were arrested and taken into detention without justifiable and lawful cause by the military at awkward times.
Therefore these applicants cannot be excused to totally abuse the process of urgency under the pretext that they could not approach a judge to handle the matter because the courts were on Easter recess. Urgency is not a hat that one can put on or off at one’s convenience. Urgency is a condition imposed upon a person by reasons or circumstances beyond his or her control. If this matter was not urgent during Easter recess, it cannot a day or two after Easter become an urgent matter.
Once the deponent of the Founding Affidavit averred that he feels he should have filed this application earlier but he decided against doing so, Mr Mosito K.C. should not have issued the certificate claiming he believes the matter is urgent. Therefore this point was well taken and must succeed.
This is another point of law raised by the respondents. This is a major point in limine because its attack, is directed at the root of the matter. The three applicants claim that they are entitled to come to this court to claim the relief which they are seeking, on the ground that they are members of LCD and as such, they are entitled and in fact duty bound by LCD’s constitution in particular Article 12 (a) thereof to uphold the said constitution.
These applicants do not claim that they are the only ones who are the card carrying members of LCD, therefore there must be others. LCD as a ruling party, even although it is possible that not everybody who voted for LCD is LCD card carrying member, it must definitely have a lot more card carrying members than just these three.
The order sought before this court is or should be of general interest to all members of LCD party – not just these three applicants. They are asking the NEC of LCD and LCD to come before this court and show cause why:-
“(a) The 1st respondent shall not be directed to convene a special general conference of the 2nd respondent within fourteen (14) days hereof for the purposes of deliberating on and resolving the issue of lack of confidence in the 1st respondent as requested by the 17 constituencies of the 2nd respondent.
(b) The 1st respondent shall not be directed to convene a special general conference of the 2nd respondent within fourteen (14) days hereof for purposes of filling in the position of the Treasurer of the 2nd respondent?
As I have pointed out earlier on these three applicants do not claim to be the only ones in the party – LCD, who are carrying the cards of membership. Therefore the duty to respect and abide by the LCD constitution must be in the interest of all the members. If this calling of the SGC is concerned with these agenda items. (1) Passing of no confidence in the NEC and (2) the election of the treasurer for the LCD party, it should be a matter of general interest of all the party members. On what ground are these three applicants, taking over the responsibility to look after interests of all members of the LCD party? On what legal grounds are these three applicants responsible for the enforcement of the constitution of the LCD party against LCD party and NEC of the party? In order to avoid the likely accusation of non-joinder of all the members of the party, they claim to be acting only on their own behalf and for themselves.
If they have the particular and peculiar interest of their own the three applicants must claim such particular and peculiar interest that benefits only themselves. These three applicants have not done so. They claim to have a right as members of the LCD political party to approach this court to ask for an order to compel NEC to convene an SGC. They have not shown this court how and when did they come by this clear right. If it is from just being the member of the LCD, they must show how and where the member derives the power to call for SGC in the manner they have. The LCD constitution has provided for the call of the SGC. Article 5.2 provides.
“5.2 SPECIAL GENERAL CONFERENCE (EMERGENCY)
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 a Conference. Beyond that such a request should be with constituency secretaries at least fourteen (14) days before that date. Special General Conference for the Women or youth Leagues can be called following the same procedures and reasons as the ones above. Such a conference will need the approval of the National Executive Committee, and it will take the format as indicated in 5.2.1, procedures as in 5.2.2 with authority as to 5.2.3 (p.p.15,16)
5.2.3 POWER AND DUTIES OR THE SPECIAL GENERAL
Powers and duties of the Special General Conference of the Lesotho Congress of Democracy are:
(b)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.
(c) Special General Conference will have the same powers, which will be equal to those of the usual General Conference with regard to the special issue that, the Special General Conference has been called to deliberate upon. (p.16)”
There are three different ways of calling SGC in terms of ARTICLE 5.2 of the constitution of LCD. In other words there are three different bodies which have been empowered by the LCD constitution to call SGC.
Firstly, SGC may be called, through a resolution by the
Secondly, If the NEC deems it necessary
Thirdly, following a request from at least ten constituencies [My underlining] directed at the NEC of the party through the office of the Secretary General. Such a request should give reason or reasons for the calling of such a conference.
The three applicants claim that they derive their power to sue LCD together with its NEC to call SGC from firstly the right as LCD Membership card holders and may be also from the petitions [My underlining] from seventeen constituencies. They – the applicant do not claim to be signatories to any of those alleged petitions. What is a petition? It is defined in the “concise OXFORD ENGLISH DICTIONARY as a formal written request, typically signed by many people, appealing to authority in respect of a cause.”
There is no petition before court which shows that these applicants together with others have appended their signatures to the alleged petitions. There are no petitions before this court which show this court that these applicants asked the NEC to follow a certain cause of action set out in the said petitions.
That request/petition should be from the constituencies. What the applicants call petitions are letters from Constituency Committees. The letter from the constituency committee is something separate and different from request or petition from the constituency. The constituency committee is a separate and different body from the constituency, in composition and size. Mr Teele K.C. marveled many times at the clarity, precision, conciseness and accuracy of the articles of the LCD constitution. The applicants cannot mix up the two different and separate entities in LCD i.e. that is the “constituency and the constituency committee.” The letter from the constituency committee signed by the secretary of such committee cannot be regarded and be passed as a request or petition by the constituency. Therefore the question still remains, “where do these applicants get their authority to approach this court and ask for the relief as they did? No where.
If each and every member of the LCD political party is entitled to approach this court in his or her own personal capacity as a member of the party as averred in paragraph 4.2 REPLYING AFFIDAVITof Honourable RETHABILE MARUMO, I am surprised that in its life, this is the first time the member of the party in his or her personal capacity calls for convening and holding of SGC of the party. Perhaps I am just ignorant of that fact, but if it is so, LCD would be permanently holding SGC requested by members in their personal capacities considering the fact that it is a ruling party and must command the greatest number of members. In their personal capacities as members of the LCD political party the three applicants must show and establish a special, a particular and peculiar interest for the calling of the SGC of LCD. They cannot rely on what every member of LCD possesses – that is membership card. They cannot call for what is in every member’s interest without involving every member. On their own they have no locus standi.
It was on this ground that this application was dismissed with costs as prayed.
For Applicants: Mr K. Mosito K.C.
For Respondents: Mr M. Teele K.C.
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