CIV/APN/274/82

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REFILOE
M. MOSEMENE 1st Applicant

MOTSUMI
NGAKANE 2nd Applicant

THULO
MAHLAKENG 3rd Applicant

V

PHOKA
FOSA 1st Respondent

NQOSA
MAHAO 2nd Respondent

THOZAMILE
BOTHA 3rd Respondent

KETSO
LETSELA 4th Respondent

RAKUOANE
RAKUOANE 5th Respondent

N. U. L.
6th Respondent

JUDGMENT

Delivered
by the Hon. Acting Judge Mr. J. Unterhalter on the 3rd day of
December, 1982.

The
Applicants in their Notice of Motion claim various declarations and
an interdict. There is also a claim for an order that the

administration of 6th Respondent be ordered to call and conduct
elections in view of the fact that the Interim Students'
Representative
Council is in default and out of term of office, such
elections to be held within 21 days of the Court Order.

The first
declaration sought is that the Interim Students' Representative
Council has been operating out of its term of office and
illegally by
reason of not having held annual elections. The second declaration
sought is that the purported adoption of a new
constitution by the
Interim Students' Representative Council on 14th October 1982 is
invalid. I should add that these last two
words are not included in
the prayer but presumably they were omitted in

2

error.
The third declaration sought is that meetings of the students union
of 12th October 1982 and the 14th October are null and
void in so far
as they purport to have a new constitution of the students union
adopted. The fourth declaration sought is an order
to the effect that
the constitution purportedly adopted on the 14th October 1982 is null
and void in so far as it was adopted illegally.

The
interdict sought is that the Interim Students' Representative Council
be restrained forthwith pending the election of a new
Students'
Representative Council from functioning as the Students'
Representative Council and an order is also sought that certain

property detailed in the prayer be handed to the Administration of
the 6th Respondent.

All the
Respondents save the 6th Respondent gave notice of intention to
oppose and filed answering affidavits to which the Applicants

replied. The matter was heard as one of urgency on the 17th November
1982 and the court sat until 7.00 p.m. in order that an immediate

decision should be made. The application was dismissed with costs and
the court stated that if reasons were requested they would
be given;
such request has been made and the reasons now follow.

It is not
clear from the founding affidavit on what facts the Applicants based
the claim for relief. There were references to the
Student Union
constitution but this was not attached to the papers and the Court is
therefore not in a position to take notice
of these references. It
has therefore not being established that the Respondents as members
of the Interim Students' Representative
Council have conducted
themselves in a manner that is contrary to the provisions of the
constitution.

It is
said that meetings of the student body were held for

3

the
adoption of a constitution and inadequate notice was given as to the
time and date of the holding of these meetings. The Applicants
state
that the notice was given on the 11th October 1982 for a meeting to
be held on the 12th October 1982 and the Respondents
say that on the
30th September 1982 notice was given that a meeting of the Students
Union would be held soon after the short break
which ended on the 9th
October 1982 for the purpose of discussing a draft amended
constitution, copies of which were distributed
to the Student Union
at the time that the notice was given. There is thus a dispute of
fact as to whether adequate notice was given
and it cannot be
resolved on these papers. It is said by the Applicants that at least
seven days notice must be given prior to
such Student Union meeting
and reference is made to article 18-2, the submission being that the
purported notice was irregular
and illegal. The Respondents deny that
article 18-2 operates in the present matter by reason of the fact
that the Interim Students'
Representative Council had been
specifically charged by the Student Union at its meeting held on the
7th May 1982 to prepare an
amended draft constitution and to present
this to the Student Union for consideration and adoption as soon as
it was ready. Here
too there is a conflict of fact which cannot be
resolved on the papers. The Applicants describe the events that took
place at meetings
that were held on the 12th October, 1982 and the
13th October 1982 and allege that the adoption of the constitution at
the last
of the two meetings was fraudulent. The Respondents deny
certain details as to what happened in regard to disorderly conduct
at
the meetings. They say that voting on the motion to adopt the
constitution took place, it was adopted by six hundred votes with
two
abstentions and no votes against, and there is a denial that the
adoption was fraudulent. Again

4

there is
a dispute of fact that cannot be resolved on these papers.

The
Applicants say that three hundred students signed a petition
submitted to the sixth Respondent requesting a declaration that
the
adoption of the draft constitution on the 14th October 1982 was null
and void, requesting that the 6th Respondent order that
the Interim
Students' Representative Council cease forthwith to hold itself out
as the students' representative and that the students'
property be
handed to the sixth Respondent; and further that the 6th Respondent
maintain order and call for and conduct elections
for a new Students
Representative Council within a reasonable time. The Respondents say
that a number of signatures on the petition
were obtained through
misrepresentation and that many students on learning the true purpose
of the petition repudiated their signatures.
The Applicants reply in
connection with the alleged misrepresentation to students that the
Respondents do not state what the terms
of misrepresentation were and
who the students were who repudiated their signatures. Here again
there is a dispute of fact that
cannot be resolved on the papers.

The
Applicants conclude their replying affidavits by making the
submission that the Respondents have not made out a case against
the
allegations that their terms of office have expired, that sufficient
notice to amend the constitution has not been given, that
the meeting
of the 14th October 1982 was irregular and disorderly, and that the
Applicants are by law compelled to hold elections.
However, in this
matter it was the Applicants who sought relief and it was for the
Applicants to make out a case. In having alleged
that there was a
fraud committed in regard to the adoption of the constitution the
Applicants must surely have been aware of the

5

fact that
a serious statement such as that would not be admitted by the
Respondents and that consequently a dispute of fact would
inevitably
arise. The fact that no valid constitution exists is fundamental to
the case of the Applicants and if this is to be
proved it must be
proved under conditions which enable the evidence adequately to be
presented and tested. Ordinarily this is done
by way of action when
witnesses give their testimony in open court and are cross-examined.
Rule 8(14) states that if in the opinion
of the court the application
cannot properly be decided on affidavit the court may, among other
actions it can take, dismiss the
application. It can also direct that
oral evidence be heard on specified issues. The court was informed
however, that as the elections
were to be held on the day following
the hearing the matter was of great urgency and it was clear that in
the circumstances oral
evidence could not be heard at that stage. The
Notice of Motion was filed with the Registrar on the 26th October
1982 and the Applicants
have only themselves to blame if they did not
act sufficiently expeditiously in order to have the disputed issues
resolved by oral
evidence in good time before the elections took
place.

The High
Court Act No. 5 of 1978 in section 2(1) (b) provides that the court
in its discretion and at the instance of any interested
person has
power to inquire into and determine any existing future or contingent
right or obligation. The Applicants seek declarations
in the terms
stated earlier in this judgment and it is for the Court to decide
whether in the circumstances it will exercise its
discretion in
favour of the Applicants.

There is
no basis on the papers in their present state

6

upon
which the court can or would be disposed to exercise its discretion
in favour of the Applicants.

The
Applicants also seek an interdict and the granting of an interdict
likewise is in the discretion of the Court. One of the factors
that
the Court will weigh in considering whether to grant an interdict or
not is the balance of convenience. In the present matter
it is my
view that the balance of convenience is against the granting of an
interdict. I consider that it is important that the
Interim Students'
Representative Council proceed with the elections and when a Students
Representative Council is elected in terms
of the constitution that
was adopted, that body continue the administration of student affairs
in terms of the constitution. In
this way there will be some control
of students affairs by representatives of the students. On the
proposal as made by the Applicants
these duties are to be performed
by the 6th Respondent and although the 6th Respondent has not entered
into the dispute it would
seem that initially the responsibility for
the conducting of the affairs of the students should be by
representatives of the students
and not by the 6th Respondent. It may
be that there is merit in the complaint made by the Applicants. If
this is so and if there
is a large measure of support for them among
the general student body, proper proceedings in due course can be
taken to unseat
the Student Representative Council that will be
elected into office in terms of the constitution adopted in October
1982. But unless
and until that is done it seems to me on a balance
of convenience that the Court should not interfere with the present
state of
affairs, more especially by reason of the fact that the
disputes referred to above exist. This is an important reason for
exercising
the Court's discretion against the Applicants.

7

Submissions
were made in regard to the award of costs and it was said that
because the Applicants are students an order of costs
should not be
made against them more especially as the Respondents as members of
the Interim Students' Representative Council would
be enabled to pay
the costs if they were directed to do so out of the funds of the
Students Representative Council. In my view
this is not a sufficient
reason for denying the Respondents their costs. Applicants must know
that if they engage in expensive
litigation in the courts they run
the risk of having costs awarded against them. The present is a
matter where in the exercise
of a little wisdom the Applicants could
have withheld action until such time as they were able adequately and
comprehensively to
present their case. Having chosen to act
precipitately they must bear the consequences.

For these
reasons the application was dismissed with costs.

J.
UNTERHALTER

ACTING
JUDGE.

For the
Applicants : Mr. Monaphathi

For the
Respondents : Mr. Sello