SIGH COURT OF LESOTHO
MAKHALEMELE 1ST APPLICANT
MAKHETHA 2ND APPLICANT
SECRETARY, MORALE'S HOEK 1ST RESPONDENT
MINISTER OF HOME AFFAIRS 2ND RESPONDENT
GENERAL 3RD RESPONDENT
by The Honourable Mr. Justice G.N. Mofolo, Acting Judge. on the 15th
day of September. 1995.
an application in which the applicants sought an order in the
with the rules of court pertaining to modes and periods of service.
a Rule Nisi be and is hereby issued returnable on a date and time to
be determined by this Honourable Court calling upon
to show cause (if any) why:-
1st Respondent and/or his subordinates shall not be interdicted from
engaging in re-elections in the villages of Thabena-Ts'ooana
Potsane which are due to be held on the 22nd dav of August. 1995 for
the village development councils pending finalization
purported declaration of the elections of the 11th August. 1995 as
invalid shall not be declared null and void and of no force
1st respondent shall not be directed to proceed to call for holding
of ward elections which he unlawfully cancelled.
of suit on attorney-and-client costs in the event of opposition.
and/or alternative relief.
the interim relief and made the Rule Nisi returnable on 25th August,
1995 and on this day the Rule was extended to 28th
August, 1995 when
the matter was argued before me.
Notice of Motion applicants in paragraph 2(a) called upon respondents
to show cause (if any) why
The 1st respondent and/or his subordinates shall not be interdicted
from engaging in re-elections in the villages of THABANA-TS'OOANA
HA POTSANE which are due to be held on the 22nd day of August. 1995
for the village development councils pending finalisation
Founding Affidavit and at paragraph 4 thereof 2nd applicant has
On or about the 11th August, 1995 Village Development Council
elections were duly held pursuant to Legal Notice No.62 of 1995 in
the Potsane Village where I am resident (I have underlined).
9 of the 2nd applicant's affidavit reads:
It was only this very yesterday the 20th of August. 1995 when I was
told by one LEBONA and MALEBANYE both of whom are HLOAHLOENG
returning officer and acting Principal Chief of LIKUENENG HA POTSANE
respectively; that there will be held re-elections in my said
together with HA POTSANE Village in which there will be re-elections
as there were protest pertaining thereto.
be observed that in paragraph 4 above 2nd applicant says he is
resident at POTSANE Village and on paragraph 9 says 'there
held re-elections in my said village' (of course meaning HA POTSANE)
and HA POTSANE village. Certainly I am lost what the
means unless he is saving that it was intended that two simulteneous
re-election were going to be held at HA POTSANE
village; if this is
what he means it is quite nonsensical because according to 1st
Respondent's opposing affidavit the 4th paragraph
thereof he deposes:
For the election to the Village Development Council of Thaba-Ts'ooana
Ha 'Mapotsane, 20 (twenty) candidates were registered
Respondents paragraph 14 thereof reads;
The bye-election date for the Thaba-Ts'ooana Ha 'Mapotsane Village
Development Council was the 22nd August. 1995. The election
did commence on the said date and only to be stopped after an Order
of Court was served on the same day interdicting me
from engaging in
bye-elections in that village.
state that no bye-elections were or are ever to be held in the
village of Ha Poteane.
must be read in conjunction with the supporting
candidates shown the court which showed that the Village Development
Council elections were held at Thaba-Ts'ooana Ha 'Mapotsane
at Thabana-Ts'ooana and Ha potsane as the 2nd applicant suggested.
becomes clear that the applicants and 1st Respondent are not agreed
as to where the election was held and the problem for the
is that, unfortunately, a deponent to an affidavit rises or falls by
what he has deposed to in his affidavit.
Notice of Motion and 2nd applicants' affidavit quite apart from the
fact that applicants Notice of Motion is in conflict
applicants Founding Affidavit, 2nd applicants Founding Affidavit is
itself self-contradictory. I cannot, therefore, go
by 2nd applicant's
affidavit to determine where the Village Development Councils were
held but find that 1st Respondent's opposing
affidavit is a true and
reliable restatement of where these elections were held.
As I have
said the list of candidates which was shown the court reflects the
election as having been at Thaba-Ts'ooana Ha 'Mapotsane
Thabana-Ts'ooana and/or Ha Potsane - these are entirely two different
villages and on the onset I find that there was no
Development Council election held at Potsane villages or at
Thabana-Ts'ooana and Ha Potsane but that the said election
Thaba-Ts'ooana Ha 'Mapotsane.
be seen from the above that the purported interim relief which I
granted on 21st day of August, 1995 should not have been
full facts had been known to the court then.
argued on behalf of the applicants firstly that the let Respondent
should not have nullified the election as he had no such
title in law
so to act. Secondly it was also argued that 2nd applicant having won
the election aforesaid in the Potsane Village
2nd applicant had a
vested right which could not be taken away from him.
the first argument above, in terms of Legal Notice No.62 of 1995, the
1st Respondent was designated as supervisor of
Elections in terms of s.3(l) of the Notice. Section 4(a) thereof
empowers the let Respondent to
exercise general supervision over the administrative conduct of
legislation confers on the 1st Respondent power to superintend the
elections, it goes without saying that the legislation
conferred on him necessary discretion with regard to the running and
control of Development Council Elections.
therefore, it came to 1st Respondents notice that there were
irregularities in the election, be was entitled to act
protect the smooth and just conduct of the election. It was in my
view, an irregularity for the polling officer or anybody to
disqualify candidates though, as I have said, 1st Respondents action
at Thaba-Ts'ooana Ha 'Mapotsane has not been challenged in
the second leg of applicants' argument, it has been said that
'The only condition attached to this reshaping power is that, if the
action of the subordinate organ has resulted to the acquisition
certain rights by individuals, the superior organ may retract only if
it has express statutory authority to do so or if the
invalid in law.' -Wichers, Administrative Law, Butterworths, 1985
on the same page as above says that the principle may be illustrated
by way of a case where the licensing board of a city
council issues a
licence perfectly lawfully to an applicant and the council
subsequently withdraws the licence: according to him,
cannot subsequently withdraw the licence since the licence bolder has
already acquired rights in consequence of the
granting of the licence
and the city council may withdraw the licence only if it was
invalidly issued or if the city council has
authority to withdraw it.
precise terms in which Mr. Mosito for the applicants addressed this
court and I can only say that quite apart from the
fact that the
election was invalidly held in that
polling officer had no right to disqualify candidates, this question
no longer arises as the act of the 1st Respondent to nullify
elections at Thaba-Ts'ooana Ha 'Mapotsane is not challenged in these
matter the superior organ in the form of Minister of Home Affairs has
transferred his powers to the 1st Respondent in terms
of Legal Notice
No.62 of 1995. The superior organ has also given instruction to the
inferior organ within the control relationship
to the 1st Respondent.
In this deconcentration of activities taking place within a specific
administrative hierarchy of local authority
the Minister delegated
his powers to the 1st Respondent. And as Wiechers says in his
Administrative Law on p.52:
'where the delegate performs a function on behalf of or in the name
of the delegans, he replaces the delegans completely and performs
function as if the delegans himself were performing it.'
also been said:
'Now it is settled law that where a matter is left to the discretion
of or the determination of a public officer, and where his
has been bona fide exercised or his judgment bona fide expressed, the
court will not interfere with the result.' in
Shidiack v. Union Govt.
1912, 642 (A.D.) at p.651.
'not being a judicial functionary no appeal or review in the ordinary
sense would lie; and if be has duly and honestly applied
the question which has been left to his discretion, it is impossible
for a court of law either to make him change his
mind or to
substitute its conclusion for his own.'ibid 0.651.
'There are circumstances in which interference would be possible and
right. For instance such an officer had acted mala fide or
ulterior and improper motives, if he had not applied his mind to the
matter and exercised his discretion at all, or if he
the express provisions of a statute - in such cases the court might
grant relief. But it would be unable to interfere
with a due and
honest exercise of his discretion, even if it considered the decision
inequitable or wrong.' op. cit. pp. 651 -
unusual for a court of law to heap praises and accolades on a public
official. In this judgment I have not found an official
deserving of his public duties. The discretion which he used was most
fitting and appropriate in the circumstances. By annulling
election and ordering the holding of another election none of the
parties in this application have been prejudiced. On the
the holding of another election ensures that simple justice will not
only be done, but will be seen to be done.
this application is refused with costs to the 1st respondent.
Applicant: Mr. Mosito
respondents: Mr. Putsoane
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