C of A
(CIV) N08 OF 2000
COURT OF APPEAL OF LESOTHO
QHOBELA First Appellant
KOLISANG Second Appellant
CONGRESS PARTY First Respondent
COMMITTEE Second Respondent
VAN DEN HEEVER, JA
appellants were the unsuccessful respondents in the Court a quo. This
case concerns troubles, disputes and internecine conflict
Basutoland Congress Party.
September 1999 the respondents applied ex parte and, as a matter of
urgency, in the High Court for an order in the following
the Rules of this Honourable Court pertaining to service and notice
be dispensed with and the matter be heard as a matter
a Rule Nisi be issued returnable on the date and time to be
determined by this Honourable Court calling upon the Respondents
show cause, if any, why:
and/or their agents shall not be interdicted forthwith from
arranging, preparing for, organizing and/or holding a
Special Conference of the First Applicant on the 25th September 1999
or at all;
purported Special Conference of the First Applicant called by the
Respondents for 25th September 1999 shall not be declared
void of no force or effect;
purported notices issued by the Respondents and calling a Special
Conference for the 25th September 1999 shall not be declared
and void and of no force or effect;
shall not be ordered to pay the costs of this application on an
attorney and client scale;
shall not be granted such further and/or alternative relief."
following day the High Court granted the interim order as prayed
making it returnable on the 29th day of September 1999 and
further order (paragraph 3) reading as follows:
prayers 1 and 2(a) operate with immediate effect as an interim court
order pending finalisation hereof.
return day the aforesaid Rule nisi was confirmed as against the first
respondent in the following terms:
"a) The first Respondent be and its hereby interdicted forthwith
from arranging, preparing for, organising and/or holding
Special Conference of the first Applicant on the 25th September 1999
or at all;
purported Special Conference of the First Applicant called by the
25th September 1999 be and is hereby declared null and void
no legal force or effect;
purported notices issued by the Respondents calling the Special
Conference for the 25th September 1999 be and is hereby declared
null and void and of no force or effect;
first Respondent be and is hereby ordered to pay costs hereof on a
scale as between Attorney and Client.
as against the second Respondent the Rule Nisi aforesaid be and is
hereby extended to the 6th October 1999."
September 1999 i.e. the day following the confirmation of the Rule
nisi against the first appellant, both the then respondents
appellants) gave notice of their intention to oppose. Answering and
replying affidavits followed. On 17the January 2000 the
Court Judge who had granted the earlier orders issued the following
"1 Prayers (b) and (c) granted - confirmed with costs,
prayer (a) falls off.
appellants have appealed on the following grounds:
The Learned Judge a quo erred in law in not dismissing the
Respondents' application on the ground that the certificate of
did not contain grounds of urgency in line with this
Honourable Court's judgment in Commander LDF & Another v Matela C
(CRI) [sic] No 3 of 1999.
The Learned Judge a quo erred in not dismissing the Respondent's
application on the ground that it contains no justification for
ex parte procedure adopted regard being had to the judgment of this
Honourable Court in Commander LDF & Another v Matela
C of A (CRI)
[sic] No 3 of 1999.
The Learned Judge a quo erred in law in not dismissing the
application of the Respondents on the ground that it contained no
for an interdict.
The Learned Judge a quo erred in holding as he did that the
conference of the 25th day of September 1999 held by Appellants was
null and void as being unconstitutional.
The Learned Judge a quo ought to have held that because there was no
working committee and the National Executive Committee members
Appellants before this Court and one Mrs Mpho Moeketsi, it was
absolutely impossible for the Constitution to be followed to the
letter, and the defences of necessity and impossibility ought to have
Even if the Learned Judge a quo had properly held that the conference
of the 25th day of September 1999 was null and void as being
unconstitutional; he ought to have held nevertheless that the
proceedings thereof were not null and void in as much no prejudice
had been alleged in the papers before him by either of the Applicants
to themselves resulting from the holding of the said conference.
Appellants reserve the right to file further and better Grounds of
Appeal upon receipt of the Learned Judge a quo's reasons for
additional grounds of appeal have been filed, nor for that matter
have any reasons for judgment been filed.
appellant is the President of the Basutoland Congress Party (the
first respondent) and Chairman of its National Executive
respondent) while the second appellant is the Deputy Secretary
General of the first respondent and a member of the
founding affidavit was deposed to by one Ntsukunyane Mphanya who
himself as being Secretary General of the Basutoland Congress Party
and alleges that he is duly authorised to bring the
on behalf of the Party as well as on behalf of its National
Executive. The appellants admit that he was the Secretary
the Party and a member of its National Executive Committee on 25th
September when he and five of his colleagues were
dismissed by a
Special Conference held by the first appellant on that day. However,
in reply, Mr Mphanya points out that if any
such meeting was held it
was a nullity as it had not been constitutionally convened, and in
any event was in defiance of the Order
granted by the High Court on
the previous day and was in contempt of such order. Furthermore none
of those allegedly dismissed
had been given a hearing or advised that
their dismissal was on the agenda of the proposed meeting.
It is not
in dispute that neither the first appellant in his capacity as Party
Leader nor the second appellant in his capacity as
Secretary General have the power to convene or call a Special
Conference of the Party. However, that admission is qualified
statement in the answering affidavit of the second appellant where he
says "but only where there has not been a petition
relevant articles of the Constitution of the Party read:
A Special Conference will be called by the National Executive
Committee itself when there is a matter which the National Executive
Committee find to be of significance or so urgent that it cannot wait
for the Annual Conference".
A Special Conference will be called on the basis of a request coming
from a Constituency or Constituencies directed to the Secretary
General such a request indicating reasons requiring the calling of
such a Conference, based on the significance or urgency of it
such that the Annual Conference cannot be waited for".
When the Secretary General receives such a request he will
immediately consider it with the Party Leader, and they should
put it before the working committee".
The working committee will consider such a request, and when it is
satisfied of the importance and urgency of the conference, it
call members of the National Executive Committee immediately".
The National Executive Committee when it is satisfied of the reasons
for such request, will send notices to constituencies and
the agenda of such a conference".
A Special Conference can be called by the National Executive
Committee pursuant to a direction of the Annual Conference to check
and consider any matter which the Annual Conference may require to be
heard or attended to".
Mphanya stated that he is able to say with certainty that none of the
above Articles has been complied with which would justify
of a Special Conference. Moreover the provisions of Article 13.7 have
not been "triggered into play" because
Conference of the Party held on 24th April 1999 never resolved to
hold a Special Conference on 25th September 1999.
circumstances it is the respondents' case that the purported Special
Conference which was due to be held on 25th September
unconstitutional and should be declared null and void and of no force
and effect. Hence an interdict was sought to prevent
the holding of
such a Conference and for the other relief set out above.
second appellant (then the second respondent) deposed to an answering
affidavit on behalf of the appellants. He is the Deputy
General of the Party.
a number of points in limine. These are:
respondents have never resolved to bring these proceedings. It is
pointed out that the first appellant is the President
Party and the Chairman of its Executive Committee which makes
decisions as to whether or not the Party should institute
never been a meeting to which either of the appellants was ever
invited to decide on the issue of instituting these proceedings.
if it is assumed that the appellants were not invited because
proceedings were to be brought against them it is alleged that
Mpho Moeketsi, who is a representative of the Women's League should
have been invited so as to enable her to participate in
meeting. But she was not invited. It is contended that any such
meeting was a nullity.
is no urgency in this application, the respondents should not
have proceeded ex parte and the certificate of urgency
Mr Phafane, a well known practitioner) "is a clear abuse of
the process of this Court". It is alleged
respondents have failed "dismally" to comply with Rule
8(22) of the Rules of the High Court and that
should be dismissed with costs on the scale as between attorney
ought to have foreseen that there would be a serious material
dispute of fact and had no right to proceed "to
Order ex parte and on the basis of urgency".
respondents are guilty of material non-disclosure in as much as
they had concealed vital information including the fact
had been invited by the Leader of the Party to attend a
discussion regarding the Special Conference as the National
replying affidavit Mr. Mphanya denies that the respondents have not
resolved to bring these proceedings. He avers that while
appellants were on "their defiance spree" against a
judgment of Mr. Justice Ramodibedi they boycotted meetings of
National Executive Committee which they referred to as
"Ramodibedi's". Every member of the National Executive was
invited to the emergency meeting of 23rd September 1999 at which a
quorum resolved to bring these proceedings. The invitation is
as "BCP3". With regard to the appellants' reaction to this
invitation one Moeketsi Tsatsanyane, the Deputy Publicity
of the second respondents has filed a supporting affidavit.
Paragraphs 5 to 9 of that affidavit read as follows:
On or about the 23rd September 1999,I was detailed by the Secretary
General to deliver letters of invitation to an urgent meeting
National Executive Committee after the National Executive Committee
had on that day become aware of an intended clandestine
Conference of the B.C.P. These letters were addressed to all members
of the National Executive Committee.
I delivered the letters accordingly and a meeting was duly convened
at House No 597 Hillsview which the National Executive Committee
temporarily using as an office while the party Head quarters building
at the market is being re-constructed. The Respondents
know this very
well hence they even delivered Mphanya's letter referred to in the
answering affidavit to that address.
I wish to inform the Honourable Court that the Deputy Secretary
General Kolisang 'Molotsi duly accepted and received his letter
I delivered to him personally.
When I handed the letter to him, Molapo Qhobela refused to accept the
same when I told him it was from the Secretary General. He
warned me that he did not communicate by letters with Mphanya and
further that I should never take to him letters from
Mphanya. As for
Mpho Moeketsi, I again gave her the letter which she refused to
accept delivery of, stating inter alia that she
did not attend
meetings of a committee of boys.
I verily aver that the meeting was nonetheless proceeded with by the
National Executive Committee. Kolisang, Qhobela and Moeketsi
attend but there was quorum of which I was part and it was duly
resolved that these proceedings be brought against the Respondents.
The meeting was held on the 23rd September 1999".
thus a clear conflict of fact as to whether the three aforesaid
persons were invited to attend the meeting on 23rd September
there is no real dispute that such a meeting was held, that there was
a quorum and that the relevant resolution was passed.
did not apply to file a fourth set of affidavits. There is thus no
substance in the point in limine on this topic.
regard to the question of urgency and the bringing of an ex parte
application it is true that counsel in his certificate of
not comply with a directive issued by this Court. It does not follow
that the respondents must be non-suited. On their
case the matter was
exceedingly urgent. It is not disputed that they only became aware of
the proposed meeting on 23rd September
1999 which necessitated the
obtaining of a Court Order on 24th September 1999 in order to prevent
the holding of a meeting the
following day. Had notice been given it
is at least reasonably possible that that would have prevented the
Court from dealing with
the matter on the following day. Paragraph 10
of the founding affidavit proclaims the extreme urgency of this
matter and in my
view this point in limine is without substance.
denied by the respondents that there is any serious dispute of fact
on the real issues which require determination. It is
said that the
"alleged dispute of fact is self-created and on peripheral
issues". It is submitted that on the proved
and admitted facts
the application should be granted. In the alternative it is submitted
that the matter should be referred for
the hearing of oral evidence
with a view to resolving the dispute between the parties "once
and for all".
regard to the question of alleged non-disclosure this is denied by
Mphanya in his replying affidavit and such alleged non-disclosure
not been shown on the papers. That point in limine must also fail.
has an unfortunate history of internecine conflict. This resulted in
court proceedings before RAMODIBEDI, J in CIV/APN.205/99.
case on 6 July 1999 he declared null and void the formation of a
committee of which the appellants were members. It is
respondents' case that since that decision the appellants have
deliberately absented themselves from meetings of the National
Executive Committee despite being aware of the fact that that
committee meets weekly and that, despite such absence, the National
Executive Committee continues to meet regularly, fulfill its
obligations and transact the necessary business. It has also
a working committee in terms of the Constitution.
It is the
appellants' case that no working committee has ever been established
and that the reason "for this unfortunate and
position it that deponent and his friends who are members of the
committee elected on the 24th April 1999 are
so disruptive of the
smooth running of the Party that it has become virtually impossible
to run this Party".
appellants do not contend that there was ever exact compliance with
the provisions of Article 13 of the Constitution. Relying
allegations which are disputed by the respondents, they allege that
there was substantial compliance with Article 13 . Inter
alia, it is
Deputy Secretary General received a request from a number of
constituencies to call a Special Conference. Such request (if
written) is not annexed. The Constitution required that requests be
submitted to the Secretary General which they were not. However,
appellants allege that the Secretary General was never to be found.
This is strenuously denied by the Secretary General. Then
alleged that, as there was no working committee, and because of the
vacuum which had been created by the appellants, the
Deputy Secretary General and Mrs Moeketsi, being the only members of
the National Executive Committee available in
offices of the Basutoland Congress Party, had to meet as a matter of
urgency in order to meet the wishes of the constituencies,
63 of whom
attended the Special Conference. All of this is denied by the
appellants who, on facts which cannot be disputed, were
difficulty to meet on 23rd September 1999 and pass the relevant
resolution authorising these proceedings.
understand the case of the appellants it would seem that they are
relying on the defences of necessity and impossibility as
the allegation that there was substantial compliance with Article 13.
In support of their case the appellants have annexed
four Chairmen of various constituencies (No 78, 80, 77 and 79
respectively) each of whom alleges that his constituency
represented at the Special Conference held on 25th September 19999
"in accordance with the Constitution of the B.C.P".
reasons are given for the last statement which, on the admitted
facts, is not justified.
opinion the calling of a Special Conference by the appellants was a
clear violation of Article 13 of the Constitution and
unlawful. There can be no question of substantial compliance. There
was no compliance at all. In
so far as
the appellants seek to confess and avoid by raising the defences of
necessity and impossibility, the onus burdened them.
Cf. Pillay v
Krishna. 1946 AD. 946,951. Any conflict of fact would therefore have
to be resolved on the version of the respondents.
But in any event to
the extent that the appellants raise the defences of necessity and
impossibility such defences do not avail
them. If they were
dissatisfied with the manner in which the Secretary General or any
other official was performing his or her
functions and discharging
his or her duties their remedy was to seek relief from the High
Court. What they were not entitled to
do was to act
unconstitutionally by taking the law into their own hands and acting
in flagrant violation of the Constitution.
Mr Mosito. who appeared for the appellant, had an alternative
argument. Replying upon the case of Jonker v Ackerman e.n.
1979 (3) SA 575 (0) he submitted that it was necessary for the
respondents (the applicants in the Court a quo) to prove
were prejudiced even if the Special Conference on the 25th September
1999 was unconstitutional. In that case it was held
inter alia that
the mere non - compliance with the provisions of the constitution of
a voluntary association is ordinarily not
sufficient for a Court to
intervene in the proceedings of such an association: it is necessary
for a person who is allegedly aggrieved
to show that he has been
I find it
unnecessary to decide whether Jonker's case was correctly decided.
it is assumed in favour of the appellants that the present
respondents had to show that they were prejudiced such prejudice
obvious. It speaks for itself. The respondents are the political
party and its executive who rightly complain that there has
flagrant violation of the constitution of the Party itself.
opinion there is no substance in Mr Mosito's alternative argument.
there any need for this matter to be referred for the hearing of oral
evidence (as was suggested by Mr Mosito) because there
is no real or
genuine dispute of fact on the essential issue in this case.
one final matter to which I must refer.
necessary for the proper administration of justice that Courts give
reasons for judgment. A litigant has every right to know
why a case
has been won or lost. And a lower Court is also obliged to furnish
reasons so that a Court of Appeal will be properly
informed as to
what prompted the Court a quo to arrive at its decision.
present case no reasons are given by the learned Judge a quo either
for his order confirming the Rule or for his subsequent
His conduct in this regard is to be deplored. Despite the absence of
such reasons, I am of the clear view that
this appeal has no merit
and should be dismissed, with costs.
at Maseru this 13TH day of April, 2000
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