HIGH COURT OF LESOTHO
MINEWORKS LABOUR CO-OP LIMITED lst Applicant
SALAE 2nd Applicant
REGISTRAR OF COOPERATIVES
Moeketsi) lst Respondent
MOEKETSI MOKHEHLE 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
by the Honourable Chief Justice Mr Justice J.L. Kheola on the 17th
day of February. 1995.
an application for an order in the following terms:
with ordinary Rules of this Honourable Court pertaining to the modes
and periods of service.
Rule Nisi be and is hereby issued returnable on the date and time to
be determine by the Honourable Court calling upon the respondents
show cause (if any) why:-
first respondent shall not be restrained from proceeding with the
purported appeal of the second respondent against the applicant's
said purported appeal shall not be declared null and void and of no
force and effect.
first respondent shall not be interdicted from recognising the
second respondent as a member and\or official of the first
thus not entitled to bring any proceedings before the first
second respondent shall not be ordered to comply with the Court
Order in CIV\APN\286\89.
respondents shall not be ordered to pay the costs hereof, the first
and third respondents
paying only in the event of opposition,
applicants shall not be granted such further and\or alternative
relief as this Honourable Court may deem meet.
1, 2(a) and (d) to operate with immediate effect as interim orders.
of this case are as follows:
second respondent lodged a complaint with the first respondent in
terms of section 51 of the Co-operative Societies Proclamation
of 1948. He asked for intervention by the first respondent and the
latter appointed an arbitrator, a certain Mr. E.M. Kobeli
delivered his decision on the 27th February, 1989. (See Annexure "A"
to the founding affidavit). The decision of
the arbitrator was that
the second respondent and his colleagues should register all members
and cause them to pay their subscription
and that elections should be
held before the 25th April, 1989,
22nd April, 1989 a meeting of the applicants' General
was held and elections were held for the Executive Committee. (See
Annexure "B"). After the meeting, the minutes
were taken to
first respondent for him to be informed as to what transpired in the
meeting and to be registered as such. The first
the minutes and expressed the view that he or they were aware of the
lawful elections that took place on the
22nd February, 1989 that put
new office bearers in office of management responsibility in terms of
the Co-operative laws then in
force. This was an endorsement made by
the first respondent at the bottom of the minutes on the 25th April,
common cause that the second respondent never accepted the results of
the elections and continued to hold himself out as the
the first applicant. In CIV\APN\286\89 the first applicant was
granted a final court order restraining the second
holding himself out as the President of the first applicant and from
doing certain acts (See Annexure "K").
Prayer (d) in the
present application the second respondent is ordered to show cause
why he shall not be ordered to comply with
the Court Order in
CIV\APN\2889. This is a somewhat novel procedure where a person who
is allegedly defying a valid order of this
Court is again asked to
appear before Court and show cause why he should not be ordered to
comply with a Court Order, The proper
procedure is that he must show
cause why he should not be committed to prison forthwith.
second respondent alleges that on the 28th March, 1989 he lodged an
appeal against the decision of the arbitrator (See Annexure
to the answering affidavit).
14th April, 1989 the first respondent wrote a letter to the first
applicant informing it of the fact that the second respondent
lodged an appeal against the decision of the arbitrator. He
apparently enclosed the reasons of appeal as well as the proceedings
and the judgment of the arbitrator. (See Annexure "RA").
second respondent's contention is that he never received the first
respondent's Annexure "RA").
second applicant's contention is that he never received the first
respondent's Annexure "RA" together with all the
accompanying documents. He became aware of the appeal on the 13th
September, 1993 when Annexure "A" was served upon him.
Annexure "A" is a notice of set down of the appeal. There
is a serious dispute of fact whether the second applicant received
the appeal. He alleges that the appeal was not ledged within one
month after the date of communication of the award to him in terms
Rule 32(d) of the Co-operatives Societies Rules in High
Commissioner's Notice 174 of 1948. It is alleged that the award was
communicated to the parties on the 27th February, 1989.
Kobeli, the arbitrator, has filed an affidavit in which he alleges
that he is the former Law and Administration Section Officer
Co-Operatives Department of the government of Lesotho since 1975 to
1992. His duties involved registration, administration
arbitration for the whole of Lesotho in respect of co-operatives
societies. In paragraph 6 of his affidavit he alleges that
"I deny that the appeal of second respondent was ever made and
filed after I had delivered the judgment at anytime before
I left. I must have known when it was filed because, first the files
were kept by me, secondly, I was the one who had
to prepare copies
for the respondents in the appeal, and also the district officers in
the respective Cooperative departmental
sections of the department.
No appeal was ever filed while I was still in employment by the
second respondent for indeed I would
even have had to sign such an
appeal and dispatch the record thereof to the higher authority being
the first respondent. What I
suspect has happened with the present
so-called appeal is that it has been filed very late in 1993 and the
rubber stamps were back-dated
by the first respondent. I was
never ever received a letter from the second respondent of the nature
and contents of Annexure "RC" referred to by him.
if I had received such a letter I would have placed a date stamp on
it thus signifying when I received it and could have
signed it. This
letter is a fabrication."
This is a
very serious allegation of fraud and fabrication of evidence by the
respondents. However, there is documentary evidence
by the first
respondent showing that the appeal was launthed on the 28th March,
1989. The allegation by the second
is that these documents on which the respondents are relying were
cooked in order to create the impression that the appeal
second respondent was lodged within the time prescribed by the rules.
The arbitrator goes so far as to say that the official
were back-dated in order to bring the appeal within the prescribed
As I have
said above this is a very serious allegation of fraud or corruption
allegedly committed by the first respondent on collusion
second respondent. These allegations are strongly denied by the first
respondent. I have come to the conclusion that there
is a genuine
dispute of fact which cannot be resolved on affidavit. The applicants
persisted in seeking
final order despite the obvious dispute of act and did not apply for
the hearing of viva voce evidence. In a recent case of
Committee of Emanuel and Others v. The Eighteenth Episcopal African
Methodist Episcopal Church C. of A. (CIV) No.25\94
Kotze, J.A. said
at payee 2-3:
"The approach of the learned Judge was wrong. The respondent
(unrepresented at the appeal) approached the Court a quo on motion.
The crucial allegation was disputed. The respondent did not apply for
the hearing of viva voce evidence and chose to let the matter
course on the disputed crucial allegation. In the circumstances the
proper approach would have been to assume the truth
of the denial of
the factual allegation. In the circumstances of appeal is upheld with
present application I shall adopt the same approach and assume the
truth of the denial of the factual allegation.
result the rule is discharged with costs.
Applicants - Mr Maieane
Respondents - Mr. Sooknanan.
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