CIV/APN/243/99
IN THE HIGH COURT OF LESOTHO

In
the matter between:

PHAI
FOTHOANE 1ST APPLICANT

'MAMOKOTO
SEKONYELA 2ND APPLICANT

and

PRESIDENT - CHRISTIAN DEMOCRATIC

PARTY (NANABETSANE RAMOKUENA) 1ST RESPONDENT

GENERAL
SECRETARY -C.D.P.

ITUMELENG RAMONE 2ND RESPONDENT

CHRISTIAN
DEMOCRATIC PARTY 3RD RESPONDENT

THUSO
LITSOANE 4TH RESPONDENT

NTJA THOOLA 5TH RESPONDENT

THE
MINISTER OF LAW AND

CONSTITUTIONAL
AFFAIRS 6TH RESPONDENT

THE
ATTORNEY-GENERAL 7TH RESPONDENT

JUDGMENT

To be delivered by the Honourable Mr. Justice G.N.
Mofolo on the 7th day of February. 2000.

The applicants Phai Fothoane and 'Mamokoto Sekonyela
applied on an urgent basis to this court for an order in the
following terms:

1. That the normal periods and modes of service be

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dispensed with.

2. That a Rule Nisi be issued returnable on a date and
time
to be determined by this Honourable Court calling upon
the
respondents to show cause (if any) why:

1. 
   The removal of applicants from the Interim
   Political
   Authority shall not be declared null and void and of no force or
   effect.

   
   

2. 
   The gazettment of the 8th and 6th
   respondents shall
   not be declared as null
   and void and of no force and effect.

   
   

(c) The subsequent appointment of the 5th and 6th
respondents in the Interim Political Authority shall not be declared
null and void
and of no force and effect.

(d) Applicants shall not he re-instated as
representative of the Christian Democratic Party in the Interim
Political Authority.

3. 
   Costs of suit.

   
   

4. 
   Further and/or alternative relief.

   
   

5. That prayer 1 operate with immediate effect.
The
application was opposed.

From a reading of 1st applicant's affidavit, he gives
the unmistakable impression that his and the 2nd applicant's task was
at all
material times to represent the interests of the 3rd
respondent and that they did represent these interests

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consulting and reporting to the 1st respondent at all
material times of their participation in the proceedings of the
Interim Political
Authority (see paragraphs 7 - 9 of the Founding
Affidavit).

In answer to these allegations the 1st respondent has,
in his Founding Affidavit , categorically denied them. At Paragraph 6
he denies
'Deponent ever gave me any reports at all since his
appointment aforesaid, Deponent took himself to be above everybody
including
the very party that put him there ---' At paragraph 7 after
denying he continues '— I went to Deponent's place to get an update
as the party was in the dark as to the developments in I.P.A. She
then asked me about models and I gave her instructions as to which
model the party wanted.' At paragraph 9 1st respondent says when 1st
applicant gave an interview to Mo-Afrika he had no mandate to
do so
for he had not consulted the executive committee or the 1 st
respondent. At paragraph 10 1 st respondent says when the Prime
Minister had called Party Leaders the deponent had not informed the
party of the meeting. The tenor of 1st respondent's response
is that
he had to go to 1st applicant to be updated of 1PA proceedings.

This court does not know and the applicants have not
informed the court of the means and channels employed by the
applicants to regularly
report their activities to the 1st
respondent.

From the record of proceedings before me, it would seem
that the applicants were sworn in as members of the Interim Political
Authority
on 9 December, 1998 ostensibly following recommendation by
the 3rd respondent for sub-section (2) of

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section
5 of the Interim Political Authority Act, 1998 reads:

subject to section 8 and 9, members referred to in
sub­section 1 shall be appointed by their respective political
parties.

In this court's view, if applicants were appointed by
their party it follows that 3rd respondent can remove them from IPA.
In fact
section 5 subsection (3) reads

A political party may, at any time, in writing, withdraw
its representative from the Authority and such a representative shall
forthwith
cease to be a member.

Another reason for the withdrawal of a representative
from the IPA is given as, vide section 10

subsection (3):

where a member is absent or is otherwise unable to
perform his duties, the party that appointed him may appoint a person
to act in
that position for that period.

Mr. Mosito for the applicant has raised three issues for
determination by this court and these are:-

1. 
   Does a member of IPA have a right to a hearing prior
   to
   his withdrawal therefrom by his political party?

   
   

2. 
   Were applicants heard in this case before
   purported
   withdrawal?

   
   

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(c) Was their withdrawal from IPA not null and
void?

Regarding (a) above, although statutorily it would
appear members of IPA are in the same class as common law employees
and can be
withdrawn on the whim of a political party so long as a
political party has done so in writing or for reasons contemplated in
section
10(3) of the IPA Act, above, the attitude of courts and no
less this court is that notwithstanding that the withdrawal is
statutohly
authorised, since the statute does not exclude the need to
be heard, a member must be heard before his membership is terminated.
The hearing would of course be by the very political party which
appointed the member to the IPA. Human being are never to be treated
like hose but are to be treated fairly and with respect before their
rights are taken away.

An important inquiry which arises is; were applicants
heard before they were removed from IPA, by whom? According to
annexure 'A'
applicants were invited to Ha Tlali (Makhaleng
constituency) by members of Makhaleng. It would appear the invitation
was by Chairman
of Makhaleng Constituency. 1st applicant has said the
invitation was by a chairman and moreover there was no agenda. In the
first
place, the invitation had nothing to do with applicants in that
applicants being members of the IPA are responsible to the 3rd
respondent
and not to a constituent member of the 3rd respondent.
Secondly, applicants were not given a glimpse of what they were
invited for
in the form of an agenda in order to prepare themselves
for the meeting.

According to Standing Orders and Rules of Procedure at
Party Meetings of

6 the 3rd respondent, Rule 11.2

is to be effected that: business shall be proceeded with
in accordance with agenda unless otherwise decided by the meeting.

This is a peremptory requirement for the validity of a
meeting. As the court understands the rule, an agenda must accompany
notice
of meeting for a meeting to be valid. In the meeting members
may include matters not appearing on the agenda for

Rule 11.3 says:

No questions other than those appearing on the agenda,
shall be debated, provided that the meeting may by resolution agree
to discuss
a matter not included on the agenda.

This rule makes an agenda a pre-requisite of meetings
prohibiting discussions on matters that don't appear on the agenda.
While only
matters on the agenda can be debated, by resolution other
matters not included on the agenda can be discussed.

Since there was no agenda as required by laws governing
the 3rd respondent, it stands to reason that as there was nothing to
discuss
in the so-called meeting of 25 May, 1999, there was no
meeting at all. Annexure 'A' of 21 May, 1999 violated rules of the
3rd respondent
and cannot be allowed to stand.

1 do not know the purport of annexure 'B' dated 29 May,
1999; in any event it has nothing to do with annexure 'A' I st
applicant at
paragraph 13 says annexure 'ET and 'C were 'purported to
be notices to ourselves informing us of our

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withdrawal from IPA—--' In answer to the 1st
applicant, 1st respondent has said that applicants know that 'the
issue of their performance
and possible removal from the IPA was in
the agenda for the said meeting which he decided not to attend —--I
pause here to ask,
which meeting? Well, if it was meeting of 25 May,
1999 1 have already said that this was no meeting. 1st Applicant has
said at paragraph
12 of his affidavit that he received annexure 'A'
on 21 May, 1999 and annexure B' on 31 May, 1999 clearly after the 29
May, 1999
and 1st respondent's response in this regard is, total
silence; his failure to answer of course amounts to an admission.
What use
was it, then, to receive an agenda after the meeting?

According to the 1st applicant, their withdrawal was
made by one constituency namely, Makhaleng whereas the 3rd respondent
has 3 constituencies
namely:

Qeme constituency being that of 1st applicant

Koro-koro " " that of 2nd applicant

Makhaleng " " that of 1 st respondent.

It will be seen that applicants' withdrawal from the IPA
was made by a constituency applicants are not responsible to. To this
anomaly
the 1st respondent has said at paragraph 12 of his Opposing
Affidavit:

'— The meeting that was called was a properly convened
meeting. We were being called by our own base, that is the founder
constituency
and in any event the meeting had been called in
consultation with the executive committee/

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Well, Makhaleng constituency is not the 3rd respondent.
In any event if it was in consultation with the 3rd respondent it
would be
expected that minutes of the executive committee would have
been tabled or submitted by the executive committee of the 3rd
respondent
failing which for the Secretary of the 3rd respondent to
have confirmed by affidavit that there was such consultation.

I do not know in what capacity Agatha Patala wrote a
letter of 29 May, 1999. In any event, unlike what 1st respondent
said, she has
not said that in recalling applicants from the IPA it
was in consultation with the executive committee or she was
authorised by it.

Of the value of natural justice Prof. Baxter in his
Administrative Law at p. 538 quoted Magarry, J. In.John v. Rees
(1970) Ch. 345.402
who said:

'— the path of the law is stricken with examples of
open and shut cases which, in the event, were completely answered; of
inexplicable
conduct which was fully explained, of fixed and
unalterable determination that by discussion, suffered a change/

I am not aware that the 1 st respondent availed himself
of an opportunity to call applicants before him to explain their
inexplicable
conduct which would have been fully explained and by
discussion, their conduct suffered a change. The 1st respondent did
not avail
himself of such an opportunity because applicants were not
responsible for conduct attributed to them. This is a strange country
and the people are strange in that, belonging together, matters which
would divide them are not brought to the fore in a spirit of
friendliness and comradeship. Prof. Baxter at p.539

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also reminds us of the remarkable expression of audi
alteram parten as a process value in the Instruction of Ptahhotep,
from the 6th
Dynasty (2300 - 2150 B.C.), which bears repetition:

^'If you are a man who leads,

Listen calmly to the speech of one who pleads;

Don't stop him from purging his body

Of that which he planned to tell.

A man in distress wants to pour out his heart

More than that his case be won.

About him who stops a plea

One says: 'why does he reject it?'

Not all one pleads for can be granted,

But a good hearing soothes the heart.

Lawyers and judges are not that heartless as some think.
Applicants plea was not rejected, they were not given an opportunity
to be
heard and that by a doubtful body and certainly not by the 3rd
respondent or through its offices.

This court has no hesitation in granting this
application and accordingly the rule is confirmed with costs to the
applicants.

G.N.MOFOLO

JUDGE
28th January, 2000.

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For the Applicants: Mr. Mosito
For the Respondents:
Mr. Phafane