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CIV/APN/410/99
IN THE HIGH COURT OF LESOTHO

In
the matter between:

BASUTOLAND CONGRESS PARTY 1st APPLICANT

NATIONAL EXECUTIVE COMMITTEE

OF THE BASUTOLAND CONGRESS PARTY 2nd APPLICANT

and

MOLAPO QHOBELA 1st RESPONDENT

'MOLOTSI KOLISANG 2nd RESPONDENT

Ruling

Delivered by the Honourable Mr. Justice T. Monapathi on
the 17th day of January 2000

There were petitions from a great number of
constituencies calling for a special conference. On receipt of these
petitions it is said
that the First Respondent instructed the Second
Respondent to appoint a Special General Conference for that date of
the 25th September
1999. There may have been a situation in the
papers where the impression is given that neither of the Respondents
could have appointed

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the conference but in the end we had a situation
where it is agreed by the side of the First Respondent and the Second
Respondent
that they caused the conference to be appointed. I am
saying it was agreed at the end that both of them caused the
conference to
take place that is why there was that conference. This
dispute is about that conference.

I have said that other prayers seem to have fallen off
except that one of the declaration. The reason was that the service
of the
interim Court Order had not been opportune enough to have
stopped the Conference. This declaration to me was not a difficult
decision
to reach. It was because in the background was a rival
National Executive Committee which had been elected and whose
validity was
later confirmed by this Court in that dispute in
CIV/APN/205/99 (MAKHAKHE AND OTHERS vs QHOBELA AND OTHERS, per
Ramodibedi J). It
was elected and it was later confirmed by this
Court. The other aspect is that I ended up concluding that it was in
fact the First
Respondent and the Second Respondent who called the
conference. They may have been and I believe there were overwhelming
reasons
why they did that. There may have been good political reasons
but that was not what concerned us here. What concerned us was
whether
they had the powers to call the conference.

We as judges are not overly concerned with what these
two Counsel have

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been doing in these three days arguing very
strongly here in the most biased and

partisan way . It is not even what these politicians
would decide or what is in their minds. Our uppermost concern is the
highest
calling of maintaining law and order in the justice that we
dispense. That there must be order according to law.

This resolution of disputes of this kind is not very
difficult in institutions such as political parties which are
registered with
their Constitutions in this country. Our task as it
should be circumscribed by one important consideration. It is that
what we have
to avoid is to be seen to be running parties for the
party members or for the committees or getting involved in the
internal affairs
of those parties. It is with that first
understanding that we are able to interpret the constitutions of the
parties against what
are alleged to be wrongs done by members or
committees. We try as much as possible to avoid being involved in the
administration
of parties.

This matter of registration has got very important
consequences because it calls upon the courts to always look for
where the power
and the control in the parties lie and if such powers
and control disturbed whether was it regularly or irregularly done?
That is
why the Societies Act No.22 of 1966 will always require that
a party's constitution and Executive Committee be registered. It is
because the law of the country will always look for where there is
control and once an Executive Committee is registered the presumption
is that that is where the power lies and

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where the main centre of control is. It is because
the constitution is not only about duties and obligation but about
division of
powers.

The constitution will substantially prescribe as to who
will do which things. Whether one call them powers, whether one call
them
obligations or duties but the constitution will ideally tell all
about these. That is what guides the courts in disputes. So that
one
cannot ever at the worst of times say it is a tall order for the
Court to come to a decision whether there was good justification
why
there was a disturbance to the powers that have been granted to an
Executive Committee. It is not an overly a difficult task
nor would
one say it is difficult at all to decide whether the Respondents had
the posers and rights to call the Special Conference.

I said if one is accused of having disturbed the powers
that lie in certain people who have been given power it was not very
difficult
because the constitution will tell one whether he has done
it regularly or irregularly. And that is what the Court has got to
deal
with because when one speak of a registered constitution the law
will look as to who the one that has control, who is it that has
got
power. It is because the constitution binds every member to comply to
its provisions. It has not been difficult in this argument
before me
to find out if there has been a disturbance of powers given to the
Second Applicant's Committee. I concluded that it was
of

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a blatant kind. Whatever may have been the
political justification it was pure

expediency. It was also because the Respondents
themselves conceded that there was a breach. They said there was a
breach. I even
suggested whether repudiation would not be a milder
word.

The Respondents accepted that there had been a breach by
themselves in appointing that conference. They afterwards attempted
to justify
why they did what they did. That is why in line with their
submission this case of NTSOEBEA v NATIONAL PARTY CIV/APN/75/94 was
quoted
to me. In that submission they said there had been a necessity
for what the Respondents did. The Respondent said that it was
necessary
to appoint the conference in view of the petitions by
constituencies and the recalcitrant attitude of the Second Applicant.
They
said if they did not do that there would have been prejudice and
that because of the absence of the working committee and the
difficulty
or intransigence on the part of the NEC members the party
was not able to perform its functions.

The Respondents in justifying their action spoke of
things to do with the need to call a conference such as this one as
having been
a matter of priority. That is why the two Respondents had
to do what they did as a matter of urgency. Because the subject of
the
conference was an important one to resolve the problems of the
party. That because the party was in shambles and there were problems
and

6 misunderstandings between the Executive Committee
members and there was

misunderstanding, the relevant provisions of the
constitution had to be given a fair large and liberal construction
judging from that
matter of priority of the petitions which addressed
important issues of the party. That there was a need to interpret the
actions
of the Respondents as mitigated even if they were in fact
breaches of the constitution as a matter of justice and
reasonableness.

It was urged that I must condone the breaches having in
mind this factors that have been spoken about in the case of NTSOEBEA
(supra).
The breach should be condoned because one has to look at
these factors which I have just spoken about which have been cited in
that
case. I speak for this case of NTSOEBEA because I know those
reasons. It had to do with postponing a date of an Annual General
Meeting.
The Executive Committee was saying that in order to have
held a general meeting the membership of the constituency had to be
culled
first. That had not yet been done. The failure to hold the
Annual General Meeting must be condoned because of that reason. Here
it
appears to be quite different. One has first to see whether the
two Respondents could not have had avenues within the party, if it
was the difficulty of the other members of the NEC be they the
majority or minority. If the Respondents could not petition the Court
(even if their reasons were overwhelming) this what they did did not
entitle them to wresting the power from the NEC or to take the
law
into their own hands.

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I repeat that one may even perhaps think that
there were overwhelming

political reasons why the conference was called or that
there could have been or there was extreme neglect on the part of the
NEC
or members thereof and that the party may in fact be in shambles.
What was important was the power that had been allocated for certain
people in terms of the constitution. As Court we are very careful
about the latter. That is why I have given the background about
the
policy of the law behind the need to register a constitution and the
need to register on a yearly basis the Executive Committees
of
registered political parties with the Registrar General. It is
intended to indicate where the power and the control lies. So that
one may clearly see a situation where there is impatience,
intolerance and everything that has to do with people who no longer
understand
each other and are therefore unprepared to cooperate in a
common endeavour. This I speak about the NEC including the two
Respondents.
Hence that example of the swimmer. One may even suspect
that this problem in the party is surely about power playing, sheer
power
playing. Again the example of swimmers who are minimally
interested in delivering or solving problems for their followers. It
may
even be that situation where once the Committee was elected it
has neglected how to resolve problems which are the welfare of its
people.

The two examples and the background comments that I have
given are intended to indicate how I viewed the need to settle the
matter.
The above brief

8 statement was about the main reason, on basis of which
I will dispose of this matter by allowing it or dismissing it. There
were
other submissions, about the standing of members of the NEC to
bring the application in the name of the NEC not in their individual
names in addition. And whether the matter was correctly brought on
the basis of urgency without notice on the Respondents. And whether
the NEC had correctly resolved to bring the proceedings. The
submission connected with the requirement in the COMMANDER OF LESOTHO
DEFENCE FORCE AND ANOTHER v MATELA C of A (CIV) No3/99 to spell out
the reasons of urgency in the Certificate of Urgency. Those I
would
deal fully therewith in my reasons for judgment. It suffices to say
that in none would I in my discretion decide for the Respondents.
This matter of the breach of the constitution remains the main reason
because of the fact that the constitution is the contract between
members. See (MAKHAKHE AND OTHERS V QHOBELA AND OTHERS CIV/APN/205/99
PER RAMODIBEDI J). It made this Court's work easy and called
for a
simple way of resolving this dispute. I would have no reason to
disassociate myself with the judgment. I associate myself fully
with
its reasoning. Essentially my task is to see if there is illegality,
whether there are breaches of the parties common constitution,
whether the breaches can be condoned or not and whether they are of a
serious kind or not.

I state the obvious that the breach of the parties
constitution by the

9 Respondent was a serious one by having on their own
appointed the conference.

They wrested the powers to appoint such a conference
from the repository of the power (the NEC). It was self-help. It may
perhaps
be that the NEC officials are perceived to be bad politicians
or bad people by the Respondents and others. But that is the problem
of the administration and governance of the party. It is not a legal
problem. The NEC official deserve like everyone else to be treated
fairly in their own rights or normal rights. There must be legality
in any approach towards them in any of their capacities and this
is
made easy if there is compliance with the constitution. And when
these are well done they can generally result in law and order
and
justice between man and man which this Court stands for.

I would risk repetition, which I cannot avoid, to say
that the act of registration of constitutions actually lays open, at
a certain
level, to scrutiny of the activities of the parties, the
level being whether there was compliance with the party's
constitution where
a litigant invites the Court to decide a dispute.
The Courts can only always be worried that they be careful in that
they will not
be seen to be deciding administrative affairs of a
party.

In this matter there may have been that extreme degree
of intolerance and impatience if the party members or officials do
not have
enough discipline that it is their business. But they should
encroach the rights of other in a way that is

10 unconstitutional. That appeared to be the learned
judge's sentiments in

MAKHAKHE & ORS v QHOBELA & ORS (supra) with
which I align myself to

say that a serious breach of the provisions of the
constitution merits censure. If litigants complain that their power
have been unfairly
wrested from them the Court will look into that.
So that in the end I allow the prayers that that conference of the
25th September
1999 be declared null and void.

With regard to costs I may merely say there should be
costs on the ordinary scale against the Respondents. I was persuaded
that there
must have been something wrong that urged for the
petitioning of a special conference. It may surely be political but
there is something
that needs to be ventilated by way of a conference
that gave the petitions a genuineness about it apart from the
illegality of the
appointment of the Special Conference itself.
Indeed the Respondents may have been overzealous or got into a rush
to do unconstitutional
things to boot. I merely settling the decision
that costs shall be ordinary costs.

T Monapathi

Judge

17th January 2000