CIV/APN/29/93

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

DR.
RICHARD THABO HOOHLO Applicant

and

KAIZER
MATELA 1st Respondent

NATIONAL
EXECUTIVE COMMITTEE OF 2nd Respondent

BASUTOLAND
CONGRESS PARTY

BASUTOLAND
CONGRESS PARTY 3rd Respondent

Before
the Honourable Chief Justice, Mr. Justice B. P. Cullinan on 28th
January,1993.

For the
Applicant : Mr. T. Mahlakeng

For the
Respondents : Mr. T. Monapathi

JUDGMENT

Cases
referred to:

1. Sopeng
   & Orders v Minister of Interior & Another C of A (CIV) No.15
   of 1992, (Unreported)

   
   

2. Majalle
   v Lekhabane & Others CIV/APN/425/92 (Unreported) The Applicant
   stood as a candidate in the sub-Branch, Branch and
   Constituency
   primary elections held by the Basotho Congress

   
   

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Party
("the Party") in Constituency No.1 Matsoaing, now renamed
Constituency No.1 Mechachane in the Description of Constituency

Boundaries Notice (LN No.1 of 1983), made by the Constituency
Delimitation Commission on 6th January 1993. The applicant was
successful
in such elections on two successive occasions. Nonetheless
the second respondent nullified the said elections and nominted the
first respondent to repesent the Party in such Constituency. The
applicant filed a notice if motion on 22nd January, 1993. He obtained

a rule nisi in terms of the said notice, as follows:

"(a) The second Respondent shall not be restrained and
interdicted from endorsing and placing the First Respondent as the

candidate of the Third Respondent for nomination to the National
Assembly Elections on the 28th January, 1993 at Mechachane No.1

Constituency.

2. The
   First Respondent shall not be interdicted from presenting himself
   for nomination on the 28th January, 1993 as the Candidate
   of the
   Second Respondent for the forthcoming National Assembly Elections to
   be held on 3 the 27th March, 1993.

   
   

2. The
   Second Respondent shall not be directed to endorse and/or present
   the Applicant as the Third Respondent's Candidate for nomination
   on
   the 28th January, 1993 for the National Assembely Elections to be
   held on the 27th March, 1993.

   
   

2. The
   Second Respondent's purported cancellation of the results of Primary
   elections wherein the Applicant was elected shall not
   be set aside
   and/or declared null and void.

   
   

2. Respondents
   shall not be directed to pay the costs of this application.

   
   

2. Applicant
   shall not be granted such further and/or alternative relief.

   
   

3. That
   prayer 2 (a) and (b) operate with immediate effect as a temporary
   interdict."

   
   

4

Section
27 (m) of the Party Constitution does not lend itself to ease of
interpretation, I would have thought that the scrutiny
or "vetting"
of potential candidates in Party primary elections, should be carried
out even before elections at sub-Branch
or village level. In any
event, it is common cause that such "vetting" takes place
after the sub-Branch elections, when
for the first time the names of
the successful candidates at sub-Branch electionsare forwarded to the
National Executive Committee
(N.E.C.), It is also common cause that
after such "vetting", the N.E.C. must accept the will of
the delegates voting
at Branch and Constituency levels, that is,
apart from the situation where the N.E.C. might properly annul an
election, on the
ground of irregularity.

In the
present case the appellant won the first primary Constituency
election on 19th September, 1992 by a convincing margin, polling
65%
of the poll, or 87 out of 134 votes cast for the six candidates. That
election was annulled by the N.E.C. on 22nd October 1992.
In the
letter addressed to the Constituency Secretary on 23rd October, 1992
the Secretary-General to the Party did not ascribe
any reasons for
such decision.

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At the
Constituency primary elections held on 14th November 1992 the
applicant was even more successful. Only one other candidate
stood
against him. The applicant polled 14 6 (i.e. 86%) of the 170 votes
cast. On 26th November, 1992 the N.E.C. decided to appoint
a
Commission to enquire into alleged complaints of. irregularities at
the said election. The Commission made its report on 2nd
December,
1992 to the N.E.C. Thereafter, on 8th December, 1992, the N.E.C.
again nullified the primary election.

The
report of the Commission was not made available to the applicant.
Neither was he ever invited to attend before the Commission
to answer
any allegations of irregularities.

The
Commission's findings are somewhat vague. The allegations are denied
by the applicant. The Court could not settle the issues
of
credibility on the affidavits, and there was simply no time in which
to hear viva voce evidence, as two electoral matters had
to be heard
by the Court in the one afternoon on the day before the Nomination
Court sits, that is, to-day. Suffice it to say that
the Court sat
well into the night to hear the two matters. Suffice it also to say
that I must confess to a degree of surprise at
the allegation that a

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candidate
who has won so convincingly at two elections in turn, would find it
necessary to become involved in irregular practices.

That is
not the real point in issue. What is in issue was that the applicant
was not given a hearing in the matter. Mr. Monaphathi
submits that
the N.E.C. could not dictate any procedure to its Commission. I
cannot see why not. In particular, I cannot see why
the Commission
did not invite the person whose rights were most affected, namely the
applicant, to attend its sittings. In view
of the Commission's
failure to do so, I cannot imagine any reason why the N.E.C. itself,
should instruct its Commission to invite
the applicant to attend, or
alternatively to invite the applicant to attend before the N.E.C. to
answer the allegations. Mr. Monapathi
seemingly suggests that there
cannot be any direct contact between N.E.C. and the Party members. I
cannot imagine why that is so.
The N.E.C. is elected by the members
to represent them. I appreciate that the Constituency must be brought
into the picture, but
it is nonetheless incumbent upon the N.E.C. to
provide a member with an opportunity of being heard before making any
decision which
may adversely affect his rights. See e,g, the case of
Sopeng &

7

Ors v
Minister of Interior & Anor (1) per Steyn J.A. That was not done
in the present case and there was clearly a failure of
natural
justice.

Mr.
Mahlakeng points to the fact that after the annulment of the election
of 19th September, 1992, that is, on 22nd October, 1992,
the N.E.C.
held sub-Branch elections on 7th November, Branch elections on 12th
November and Constituency elections on 14th November,
1992, that is,
the full gamut of primary elections were arranged and conducted in a
period of 23 days. A period of 51 days elapsed
between 8th December
1992 and 28th January, 1993 ("nomination day"), and yet the
N.E.C. failed to organize a third series
of primary election in the
Constituency in that time. The applicant had written to the N.E.C. on
29th October, 1992 and 2nd November,
1992, without reply. He wrote
again on 13th January. Meanwhile, on 11th January the N.E.C,
published the list of candidates nominated
for the 65 Constituencies,
revealing that the first respondent had been selected as a candidate
for Mechachane Constituency. It
is common cause that the first
respondent was not a candidate at any Party sub-Branch, Branch, or
Constituency primary election.
His selection as a candidate is
clearly contrary to the Party Constitution, In the time that was
available to the N.E.C. to

8

arrange
further primary elections,it cannot be heard to say that it, as in
the case of Majalle v Lekhabane & Others (2), acted
out of
necessity. This is emphasised by the fact that the N.E.C. ultimately
replied to the applicant on the same date, i.e. 11th
January, 1993,
informing him that "as N.E.C. is still considering the matter of
the parliamentary Candidate for your Constituency"
the matter
could not be dealt with "until after nomination of Candidates
Nationwide".

The
selection of the first respondent as a candidate, as I have
indicated, was invalid. Secondly, on the basis of a failure of
natural justice, the purported annulment of the second Constituency
primary election was a nullity. In view of the fact that no
reasons
whatever were ascribed to the annulment of the first such election,
and of the fact that the applicant was not given a
hearing in the
matter, that purported annulment was similarly a nullity.

I
accordingly confirm the rule with costs to the applicant.

Delivered
at Maseru This 28th Day of January, 1993.

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Delivered at Maseru This 28th Day of January, 1993.

B. P.
CULLINAN

CHIEF
JUSTICE