CIV/APN/204/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

KHAUHELO
RALITAPOLE

VS

SEKOALA
MACHELI & 8 ORS.

INTERIM
ORDER

by the
Honourable Mr Justice WCM Maqutu on the 6th day of July 2000.

An
application has been brought before this court in which applicant
asks the court to set aside the decision of the National Executive
Committee of the Basutoland Congress Party and of course the
Basutoland Congress Party on the ground that the decision to remove
applicant from the Interim Political Authority was taken without
given her hearing, in the sense that she had not been invited to
appear before the National Executive committee of the Basutoland
Congress Party to make representations.

As Mr
Panyane in his Heads of Argument crisply put the issue, the authority
of the National Executive Committee is not challenged. "The
question is not whether this political party has the prerogative, but
how it exercises it". See Khauhelo 2 Ralitapole v Ntskunyane
Mphanya & Ors. CIV/APN/394/99. In other words applicant only
claims the right to be heard.

There are
documents here that seem to indicate that the National Executive
Committee of the Basutoland Congress Party tried to inform applicant
of a date of hearing without success because applicant says she never
got the letters in question, despite the D.H.L. receipts that seem to
imply that she had got those notifications. Now it is clear therefore
that we cannot have this case coming here merely because
notifications cannot be properly sent because the parties for some
reason don't seem to get on. They don't even get to applicant even
where somebody knows clearly where applicant resides. He won't got
there, they would rather send third parties. As Mr Panyane said the
National Executive Committee of the Basutoland Congress Party paid
M57.00 for that notification which doesn't seem to have materialised.
There was a prior application (before the Chief Justice) like this
one in which a similar decision to the one before me was set aside
because there was no notification to applicant. There's likely to be
another failure if again if another effort to notify applicant is
made. This court has a lot of work, it is not going to be hearing one
case over and over again merely because a simple thing can't be done.

Mr
Panyane and Mr Phafane who appear for applicant and The National
Executive Committee of the Basutoland Congress Party (1st), 3rd and
7th respondents

3

respectively agree that it would be far better that this court should
make a decision in

which
there are no small hitches like failure to notify etc. The Chief
Justice set aside the prior removal of applicant from the IPA on
grounds of failure to notify her. I am expected again to make a
similar decision on the grounds that there was no prior notification
so that she could make representation. I am glad both counsel realize
that we can't have this repetition of the same thing merely because
parties can't get on. Whatever decision we make will still have the
same problem of having a party who will say where it wasn't properly
notified etc. Both counsel after a short argument asked for a short
adjournment to resolve this notification problem.

Well,
today they are all here in court and know what is going on and what
has to happen. Counsel have handed a signed paper which overcomes the
hurdle of notification for both sides here in court. It was signed by
Mr Macheli and Mr Phafane counsel for the parties on behalf of the
parties. Just for ease of reference and to avoid any doubt I would
ask Khauhelo Ralitapole the applicant to stand up, Sekoala Macheli
the 7th respondent to stand up. The National Executive of the
Basutoland Congress Party is several people. But who are the members
of National Executive Committee present?

I
specifically asked them to stand up and asked them: Who are you? And
they replied:

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I am
Thulo Mahlakeng the chairman, Sekoala Toloane deputy leader, Tseliso
Makhakhe leader of the Party, Jack Mopeli member of the Committee
Sekoala Macheli secretary general, Thoathoa Makuta member of the
committee.

There's
someone who was mentioned here Molapo Qhobela I understand that he
also is the leader of the Party and he is supposed to be present at
that meeting too, according to this signed paper. Now all these
people are here in court you'll tell those that are not there. You
may be seated.

Right,
now it has been agreed and your counsel who confirm they have
consulted you and they want me to make this an order of the court and
I will do so. The signed paper says that a meeting consisting of the
National Executive Committee of the B.C.P. at which Mr Molapo Qhobela
will attend be held on the 12th July, 2000 at 9,30 a.m. In that
meeting applicant will be given an opportunity to make representation
to the N.E.C as to why she should not be removed by the B.C.P. from
the Interim Political Authority (IPA). Counsels for applicant and
respondents will attend the said meeting as observers. The said
meeting will be held at a conference room to be provided in the High
Court premises by the Registrar of the court. The N.E.C. of the
B.C.P. with Molapo Qhobela attending should meet immediately after
the said meeting mentioned above and make a decision on the fate of
applicant in the IPA and give such a decision in writing to applicant
and respondents immediately. I

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think
they should give that decision to counsel for applicant and counsel
for respondents immediately. This proposed settlement is dated at
Maseru of the 6th July, 2000. It is signed for by a counsel for
applicant Mr Panyane and counsel for respondent Mr Phafane. I am
asking you both counsels: Did you do this with the consent of your
clients?. Both counsel confirmed that they did in the hearing of
their clients. Right, thank you. You may be seated.

It has to
be noted that this is not a case involving the settlement of the
dispute between the factions within the party. It has to be noted
that this is not a case settling the dispute between the factions
which are called the Makhakhe and Qhobela factions in the Party. In
respondents' papers it is said Qhobela has been removed as leader.
Applicant in her replying papers says Qhobela has not removed from
leadership. Well, whatever may be the case the issue before me is not
whether that is proper or is not. That is not what this court is
seized with because if Mr Qhobela or anybody had any complaint, a
proper case on that issue should have been brought. That issue should
be settled elsewhere. This case is about applicant's removal from
IPA.

When the
application began applicant accepted the present National Executive
Committee of the BCP as the lawful one. There's no challenge of its
legitimacy. It may or may not have done things properly. This court
is not going into the dispute of party factions at all because it is
a dispute which has been resolved by the courts. The

6 parties
in this case wisely decided this should not stand in the way. The
issue before

me is
whether this committee that is legitimate has or has not acted in a
procedurally correct way in removing applicant from the 1PA. Mr.
Qhobela will be there in that meeting as it appears applicant's
complaint was that he was not there. Respondents have no objection if
he is present as the signed proposed settlement shows. He will
participate along with the Executive Committee in decision-making
because parties want him to do so. A decision will be made in his
presence because apparently from what I gathered from the applicant's
replying papers he is leader and Executive Committees have to come
and go under him. Executive Committees have to come and go under him,
and take whatever decisions it sees fit. So his presence as one man
makes no difference as the parties have wisely recognized. If he can
persuade the others, well, decisions will go the way he wishes but
then the majority counts as has always been the case. So the National
Executive Committee whose legitimacy is not challenged, will sit with
those two leaders under their chairman who is not challenged take a
decision pure and simple and then having taken that decision the
court will then come and finalise this matter.

This
interim decision which authorises Mr Qhobela to sit with the National
Executive Committee is based on the decision of the parties before
me, and for this case only. I'm glad also that Mr Qhobela who
according to the papers appeared to have been made a parcel where a
rubber stamp is just used for him is still sufficiently

7

well and
of sound mind. Whether it is lawful and or unlawful for a rubber
stamp to be used in his affidavits, both parties agreed that they
accept he was there and he cannot write as he has had a stroke. I am
glad they have agreed this should not be pursued, his mind at least
is clear. He is not a parcel, the right hand side cannot write and he
did talk in court and clearly. So I'm working under no misconception
that he was used as a parcel. So then that is it, go and do your
thing.

Come and
tell me your decision, now I'll tell you when you will bring this
decision. This matter is postponed to the 14th July 2000at 9.30 a.m.
at that seating the court will finalize this matter. This matter is
still subjudice no final decision has been made the decision of the
court will be made following on the deliberation of the National
Executive Committee of the Basutoland Congress Party in terms of a
settlement signed by the parties. A copy of this document is annexed
hereto.

WCVT
MAQUTU

JUDGE

For
applicant : Mr Panyane

For
respondents : Mr S Phafane