C of A (CIV) N08 OF 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
MOLAPO QHOBELA First Appellant
'MOLOTSI KOLISANG Second Appellant
and
BASUTOLAND CONGRESS PARTY First Respondent
EXECUTIVE COMMITTEE Second Respondent
Held at Maseru
Coram: LEON, JA
VAN DEN HEEVER, JA
FRIEDMAN, JA
JUDGMENT
LEON, JA
The appellants were the unsuccessful respondents in the Court a quo. This case concerns troubles, disputes and internecine conflict in the Basutoland Congress Party.
On 23rd September 1999 the respondents applied ex parte and, as a matter of urgency, in the High Court for an order in the following terms:
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That the Rules of this Honourable Court pertaining to service and notice be dispensed with and the matter be heard as a matter of urgency.
That a Rule Nisi be issued returnable on the date and time to be determined by this Honourable Court calling upon the Respondents to show cause, if any, why:
Respondents and/or their agents shall not be interdicted forthwith from arranging, preparing for, organizing and/or holding a purported Special Conference of the First Applicant on the 25th September 1999 or at all;
The purported Special Conference of the First Applicant called by the Respondents for 25th September 1999 shall not be declared null and void of no force or effect;
The purported notices issued by the Respondents and calling a Special Conference for the 25th September 1999 shall not be declared null and void and of no force or effect;
Respondents shall not be ordered to pay the costs of this application on an attorney and client scale;
Applicants shall not be granted such further and/or alternative relief."
On the following day the High Court granted the interim order as prayed making it returnable on the 29th day of September 1999 and adding a further order (paragraph 3) reading as follows:
'That prayers 1 and 2(a) operate with immediate effect as an interim court order pending finalisation hereof.
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On the 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 a purported Special Conference of the first Applicant on the 25th September 1999 or at all;
The purported Special Conference of the First Applicant called by the 25th September 1999 be and is hereby declared null and void and of no legal force or effect;
the 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;
The first Respondent be and is hereby ordered to pay costs hereof on a scale as between Attorney and Client.
That as against the second Respondent the Rule Nisi aforesaid be and is hereby extended to the 6th October 1999."
On 30th September 1999 i.e. the day following the confirmation of the Rule nisi against the first appellant, both the then respondents (now appellants) gave notice of their intention to oppose. Answering and replying affidavits followed. On 17the January 2000 the same High Court Judge who had granted the earlier orders issued the following ruling:
"1 Prayers (b) and (c) granted - confirmed with costs,
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prayer (a) falls off.
The appellants have appealed on the following grounds:
"1.
The Learned Judge a quo erred in law in not dismissing the Respondents' application on the ground that the certificate of urgency did not contain grounds of urgency in line with this Honourable Court's judgment in Commander LDF & Another v Matela C of A (CRI) [sic] No 3 of 1999.
2.
The Learned Judge a quo erred in not dismissing the Respondent's application on the ground that it contains no justification for the 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.
3.
The Learned Judge a quo erred in law in not dismissing the application of the Respondents on the ground that it contained no requisites 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 other than
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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 been sustained.
Alternatively:
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.
5.
Appellants reserve the right to file further and better Grounds of Appeal upon receipt of the Learned Judge a quo's reasons for
judgment".
No such additional grounds of appeal have been filed, nor for that matter have any reasons for judgment been filed.
The first appellant is the President of the Basutoland Congress Party (the first respondent) and Chairman of its National Executive (the second respondent) while the second appellant is the Deputy Secretary General of the first respondent and a member of the second respondent.
The founding affidavit was deposed to by one Ntsukunyane Mphanya who
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describes himself as being Secretary General of the Basutoland Congress Party and alleges that he is duly authorised to bring the application both on behalf of the Party as well as on behalf of its National Executive. The appellants admit that he was the Secretary General of 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 the Deputy Secretary General have the power to convene or call a Special Conference of the Party. However, that admission is qualified by a statement in the answering affidavit of the second appellant where he says "but only where there has not been a petition from constituencies".
The relevant articles of the Constitution of the Party read:
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"Article 13.1
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".
"Article 13.2
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 [is] such that the Annual Conference cannot be waited for".
"Article 13.3
When the Secretary General receives such a request he will immediately consider it with the Party Leader, and they should immediately put it before the working committee".
"Article 13.4
The working committee will consider such a request, and when it is satisfied of the importance and urgency of the conference, it will call members of the National Executive Committee immediately".
"Article 13.5
The National Executive Committee when it is satisfied of the reasons for such request, will send notices to constituencies and also giving the agenda of such a conference".
"Article 13.7
A Special Conference can be called by the National Executive Committee pursuant to a direction of the Annual Conference to check
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and consider any matter which the Annual Conference may require to be heard or attended to".
Mr Mphanya stated that he is able to say with certainty that none of the above Articles has been complied with which would justify the holding of a Special Conference. Moreover the provisions of Article 13.7 have not been "triggered into play" because the Annual Conference of the Party held on 24th April 1999 never resolved to hold a Special Conference on 25th September 1999.
In these circumstances it is the respondents' case that the purported Special Conference which was due to be held on 25th September 1999 is 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.
The second appellant (then the second respondent) deposed to an answering affidavit on behalf of the appellants. He is the Deputy Secretary General of the Party.
He takes a number of points in limine. These are:
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The respondents have never resolved to bring these proceedings. It is pointed out that the first appellant is the President of the Party and the Chairman of its Executive Committee which makes decisions as to whether or not the Party should institute
proceedings.
There has never been a meeting to which either of the appellants was ever invited to decide on the issue of instituting these proceedings. Even if it is assumed that the appellants were not invited because proceedings were to be brought against them it is alleged that Mrs Mpho Moeketsi, who is a representative of the Women's League should have been invited so as to enable her to participate in such a meeting. But she was not invited. It is contended that any such meeting was a nullity.
There is no urgency in this application, the respondents should not have proceeded ex parte and the certificate of urgency (signed by Mr Phafane, a well known practitioner) "is a clear abuse of the process of this Court". It is alleged that the respondents have failed "dismally" to comply with Rule 8(22) of the Rules of the High Court and that the application should be dismissed with costs on the scale as between attorney and client.
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Respondents ought to have foreseen that there would be a serious material dispute of fact and had no right to proceed "to obtain an Order ex parte and on the basis of urgency".
The respondents are guilty of material non-disclosure in as much as they had concealed vital information including the fact that they had been invited by the Leader of the Party to attend a discussion regarding the Special Conference as the National
Executive Committee.
In his replying affidavit Mr. Mphanya denies that the respondents have not resolved to bring these proceedings. He avers that while the appellants were on "their defiance spree" against a judgment of Mr. Justice Ramodibedi they boycotted meetings of the 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 annexed as "BCP3". With regard to the appellants' reaction to this invitation one Moeketsi Tsatsanyane, the Deputy Publicity Secretary of the second respondents has filed a supporting affidavit. Paragraphs 5 to 9 of that affidavit read as follows:
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"5.
On or about the 23rd September 1999,I was detailed by the Secretary General to deliver letters of invitation to an urgent meeting of the National Executive Committee after the National Executive Committee had on that day become aware of an intended clandestine Special Conference of the B.C.P. These letters were addressed to all members of the National Executive Committee.
6.
I delivered the letters accordingly and a meeting was duly convened at House No 597 Hillsview which the National Executive Committee is 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.
7.
I wish to inform the Honourable Court that the Deputy Secretary General Kolisang 'Molotsi duly accepted and received his letter which I delivered to him personally.
8.
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 strongly 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.
9.
I verily aver that the meeting was nonetheless proceeded with by the National Executive Committee. Kolisang, Qhobela and Moeketsi did not attend but there was quorum of which I was part and it was duly
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resolved that these proceedings be brought against the Respondents. The meeting was held on the 23rd September 1999".
There is thus a clear conflict of fact as to whether the three aforesaid persons were invited to attend the meeting on 23rd September 1999 but there is no real dispute that such a meeting was held, that there was a quorum and that the relevant resolution was passed. The appellants did not apply to file a fourth set of affidavits. There is thus no substance in the point in limine on this topic.
With regard to the question of urgency and the bringing of an ex parte application it is true that counsel in his certificate of urgency did 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.
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It is 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".
With regard to the question of alleged non-disclosure this is denied by Mphanya in his replying affidavit and such alleged non-disclosure has not been shown on the papers. That point in limine must also fail.
This case has an unfortunate history of internecine conflict. This resulted in court proceedings before RAMODIBEDI, J in CIV/APN.205/99. In that case on 6 July 1999 he declared null and void the formation of a committee of which the appellants were members. It is the 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 established a working committee in terms of the Constitution.
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It is the appellants' case that no working committee has ever been established and that the reason "for this unfortunate and unconstitutional 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".
The appellants do not contend that there was ever exact compliance with the provisions of Article 13 of the Constitution. Relying upon allegations which are disputed by the respondents, they allege that there was substantial compliance with Article 13 . Inter alia, it is alleged that:
The 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, the appellants allege that the Secretary General was never to be found. This is strenuously denied by the Secretary General. Then it is alleged that, as there was no working committee, and because of the vacuum which had been created by the appellants, the Leader, the Deputy Secretary General and Mrs Moeketsi, being the only members of the National Executive Committee available in
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the 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 able without difficulty to meet on 23rd September 1999 and pass the relevant resolution authorising these proceedings.
As I understand the case of the appellants it would seem that they are relying on the defences of necessity and impossibility as justifying the allegation that there was substantial compliance with Article 13. In support of their case the appellants have annexed affidavits from four Chairmen of various constituencies (No 78, 80, 77 and 79 respectively) each of whom alleges that his constituency was represented at the Special Conference held on 25th September 19999 "in accordance with the Constitution of the B.C.P". No reasons are given for the last statement which, on the admitted facts, is not justified.
In my opinion the calling of a Special Conference by the appellants was a clear violation of Article 13 of the Constitution and was therefore unlawful. There can be no question of substantial compliance. There was no compliance at all. In
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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.
However, Mr Mosito. who appeared for the appellant, had an alternative argument. Replying upon the case of Jonker v Ackerman e.n. Andere 1979 (3) SA 575 (0) he submitted that it was necessary for the respondents (the applicants in the Court a quo) to prove that they 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 prejudiced.
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I find it unnecessary to decide whether Jonker's case was correctly decided.
Even if it is assumed in favour of the appellants that the present respondents had to show that they were prejudiced such prejudice is obvious. It speaks for itself. The respondents are the political party and its executive who rightly complain that there has been a flagrant violation of the constitution of the Party itself.
In my opinion there is no substance in Mr Mosito's alternative argument.
Nor is 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.
There is one final matter to which I must refer.
It is 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.
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In the present case no reasons are given by the learned Judge a quo either for his order confirming the Rule or for his subsequent "Ruling". 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.
JUDGE OF APPEAL
I agree
L. VAN DEN HEEVER
G.FRIEDMAN
Delivered at Maseru this 13TH day of April, 2000
