CIV/APN/82/2001

IN THE HIGH COURT OF LESOTHO
In the matter
between:

Mabusetsa Makharilele First Applicant

Mafereka Tsukulu Second Applicant

Motlatsi Mokebe Third Applicant

Makalo Lenka Fourth Applicant

Motamolane Matiea Fifth Applicant

and

National Executive Committee of

The Lesotho Congress for Democracy (LCD) First
Respondent

National Conference (LCD) Second Respondent

Lesao Lehohla Third Respondent

Lesotho Congress for Democracy (LCD) Fourth Respondent

Motlohi Moeno Fifth Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice M.M. Ramodibedi
on the 3^rd day of August 2001

The political intolerance that has dogged political
parties for so long in this country has once again reared its ugly
head. What
is essentially a domestic affair that should be resolved
internally has again been brought before the Court for determination
simply
due to mistrust and lack of political tolerance. Often when
the courts do reluctantly

2 intervene they are immediately and
contemptuously turned into scapegoats and so the war of attrition
continues unabated.
At the root of this unholy war lies endless power
struggles in which people jostle for positions in the management of
political parties
which in turn obviously provides access to funds
and even fat allowances.

Indeed as it is generally accepted that Lesotho is one
of the poorest countries in the world the scenario described in the
preceding
paragraph is, I regret to observe, unlikely to disappear in
the near future. Because of lack of jobs and the high rate of
unemployment
in the country it obviously pays to be in the management
of political parties and hopefully to become a member of Parliament
or,
with more lack, a Minister as a means of earning a living.

In the bitter political struggles described above one
readily calls to mind such cases as Tseliso Makhakhe and 13 others v
Molapo
Ohobela and 22 others CIV/APN/205/99 the appeal of which was
withdrawn before the Court of Appeal in Molapo Ohobela and others v
Tseliso Makhakhe and others - C of A (CIV) No. 14 of 1999: Tseliso
Makhakhe

3

and others v Molapo Qhobela and others CIV/APN/410/1999
which was again confirmed by the Court of Appeal in Molapo Qhobela
and Another
v BCP and Another 1999-2000 LLR and Legal Bulletin 243;
Lesao Lehohla v National Executive Committee of the Lesotho Congress
for
Democracy and 4 others CIV/APN/160/98 which was confirmed by the
Court of Appeal in LCD and others v Lesao Lehohla 1999-2000 LLR
and
Legal Bulletin 41.

The present litigation must no doubt be seen against the
background outlined above. There can be no other motive, in my
respectful
view, for this seemingly senseless litigation which can
only be to the detriment of the party itself. I turn then to the
salient
facts of the

case.

On the weekend of the 26^th January 2001 the
Lesotho Congress for Democracy (hereinafter referred to as the 4th
Respondent) held an annual general conference
in terms of its
constitution. One of the business of the conference was an election
of members of the National Executive Committee
(NEC) of the party
which duly commenced on Sunday the 28^th

4
January and was concluded on Monday the 29^th
January 2001.

It is common cause that the leader of the party namely
The Honourable the Prime Minister Mr. Pakahtha Mosisili retained his
position
by virtue of the fact that his term had not yet expired at
that stage and his re-election was not due. It is further common
cause
that the following thirteen (13) people were elected at the
conference namely:-

1. 
   Hon. K.A. Maope -Deputy Leader

   
   

2. 
   Hon. Thebe Motebang -National Chairman

   
   

3. 
   Hon. Lesao Lehohla -Deputy Chairman

   
   

4. 
   Hon. S.E. Motanyane -Secretary General

   
   

5. 
   Hon. Motlohi Moeno -Deputy Secretary

   
   

General

6. 
   Hon. Pashu Mochesane -Propagandist

   
   

7. 
   Hon. Tseliso Mohloki -Deputy Propagandist

   
   

8. 
   Hon. Leketekete V. Ketso -Treasurer

   
   

9. 
   Hon. Liau Nooe -Newspaper Editor

   
   

10. 
    Hon. Sello Machakela -Committee Member

    
    

11. 
    Hon. Thabiso Melato -Committee Member

    
    

12. 
    Mrs. Matseliso Monyakane -Committee Member

    
    

13. 
    Hon.'Nyane Mphafi -Committee Member.

    
    

It also requires to be mentioned (and this is further
common cause)

5

that two more committee members are automatic members of
the NEC of the 4^th Respondent for 2001. They are Mrs.
Maleshoane Motsamai who represents the LCD Women League and Mr.
Matooane Mokhosi who in turn represents
the LCD Youth League.

As is now typical of political parties in this country
some members of the outgoing national executive committee of the 4^th
Respondent stonewalled and simply refused to hand over to the
incoming executive committee citing, it would seem, irregularities
at
the election in question. This impasse resulted in the Applicants
launching the present application on the 20th February 2001
for
prayers couched in the following terms:-

"1. Dispensing with the rules of this Honourable
Court pertaining to periods and modes of services on account of
urgency.

2. A Rule Nisi be and is hereby issued returnable on the
date and time to be determined by this Honourable Court calling upon
Respondents
to show cause, (if any) why;

(a) The proposed hand over by 4^th Respondent's,
2000 National Executive Committee to 4^th
Respondent's 2001

6

National Executive committee shall (sic) be stayed
pending finalisation hereof.

2. 
   The outcome of the 2^nd
   Respondent's
   elections of the IEC (sic) of the
   4^th
   respondent on the 28^th day of January
   2001
   shall not be declared null and void.

   
   

3. 
   The Fourth Respondent shall not be
   directed
   to conduct new elections in the
   event that this Honourable Court
   declares
   the outcome of the elections to have been
   null and
   void.

   
   

4. 
   The continuation of Fourth Respondent's
   conference
   beyond 28^th January, 2001
   shall not be declared of
   (sic)
   unconstitutional and unlawful.

   
   

5. 
   The elections that continued beyond
   Sunday
   28 January, 2001 shall not be
   declared null and void.

   
   

6. 
   The participation of 3^rd Respondent
   in
   Fourth Respondent's Conference of 26 -
   28 January, 2001
   shall not be declared
   unconstitutional.

   
   

7. 
   The election of 3^rd Respondent by the
   Fourth
   Respondent's Annual Conference
   of 26 - 28 January, 2001 shall not
   be
   declared null and void.

   
   

2. 
   That prayers 1 & 2 (a) operate with immediate
   effect as
   interim court order.

   
   

3. 
   Costs in the event of opposition.

   
   

4. 
   Further and/or alternative relief."

   
   

When the matter was argued before me yesterday the 2^nd
August

7
2001 Mr. Pretorius SC for the Applicants submitted
that the 1st Applicant should be declared to have been validly
elected. When it
was pointed to him however that in terms of prayer
2(c) of the Notice of Motion the application sought new elections
altogether he
made an application from the bar for an amendment to
include a prayer invalidating the election of 5^th
Respondent and declaring valid the election of the 1^st
Applicant. There being no opposition by Mr. Kennedy SC for the
Respondents this application for amendment was granted. I observe
however that since there was no application to delete prayer 2(d)
calling for fresh elections one has an untenable bizarre situation
whereby two prayers which are mutually destructive now stand side by
side. This being an application for a declaratory order I have
taken
this factor into account in disposing of this matter.

It requires to be mentioned that the Respondents have
themselves filed a counter application for relief in the following
terms:-

"1. Declaring that the following members of the
National Executive Committee of the Lesotho Congress for Democracy,
as announced
by the Elections Committee of

8

the LCD at the annual general conference thereof on the
29^th January 2001, were properly and validly elected as
such:

1. 
   Leader: Pakalitha Mosisili

   
   

2. 
   Deputy Leader: Kelebone Maope

   
   

3. 
   National Chairman: Thebe Motebang

   
   

4. 
   Deputy Chairman: Lesao Lehohla

   
   

5. 
   General Secretary: Sephiri Motanyane

   
   

6. 
   Deputy Secretary: Motlohi Moeno

   
   

7. 
   Publicity Secretary: Pasu Mochesane

   
   

8. 
   Deputy Publicity Secretary: Tseliso Mohloki

   
   

9. 
   Treasurer: Leketekete Ketso

   
   

10. 
    Newspaper editor: Liau Nooe

    
    

11. 
    Other committee members: Sello Machakela;
    Thabiso
    Melato; Matseliso Monyakane;

    
    

'Nyane Mphafi.

2. 
   Declaring that the Applicants in the main
   application
   have, since the election of the new National
   Executive
   Committee members as referred to in prayer 1
   above,
   ceased to have any status as National
   Executive
   Committee members of the Lesotho Congress
   for
   Democracy.

   
   

3. 
   Interdicting the Applicants from obstructing, hindering
   or
   interfering with the conduct of the affairs of the National

   
   

9

Executive Committee of the Lesotho Congress for
Democracy by its new Committee members as referred to in prayer 1
hereof, and directing
the Applicants to take all reasonable steps to
ensure the smooth handing over of the affairs of the previous
National Executive Committee
to the new Committee members as
aforesaid.

4. 
   Ordering the Applicants (jointly and severally, the
   one
   paying the other to be absolved) to pay the costs of this
   counter application.

   
   

5. 
   Granting further or alternative relief."

   
   

In my view, four issues immediately arise in so far as
Applicants' case is concerned namely (a) whether or not the
applicants are
guilty of non-joinder, (b) whether the applicants have
locus standi in judicio, (c) whether there is a genuine dispute of
fact and
(d) whether the case is a proper one for the court's
intervention or whether the matter must be left for resolution by the
internal
organs of the party itself.

(a) Non-Joinder

At the outset it requires to be stated that an
application for a declaratory order as in the instant case is
discretionary. The court
must

10
however exercise its discretion judicially and
not capriciously or upon an improper motive. This court takes a dim
view of the fact
that interested people such as all those elected
into 4th Respondent's national executive committee at the conference
of January
2001 have not been joined as respondents yet the
Applicants seek to nullify their election. It seems to me beyond
question therefore
that all those people stand to suffer irreparable
prejudice should the court accede to the Applicants' prayers in these
circumstances.
In this regard the law, as I have always perceived it
to be, is that a party who has a direct and substantial interest in
any order
the Court might make in proceedings or if such order could
not be sustained and carried into effect without prejudicing his
interest
is a necessary party and should be joined in the
proceedings. See Amalgamated Engineering Union v Minister of Labour
1949 (3) SA
637 (A) at 661.

In Basotho Congress Party and Others v Director of
Elections and Others 1999-2000 LLR and Legal Bulletin 518 at 531 the
Court of Appeal
expressed itself as follows:-

11

"In the first place appellants were not the only
parties involved in the election. It is inconceivable that a court
could have
considered postponing the election without at least
involving the other parties in these proceedings and giving them an
opportunity
to be heard. The appellants should have been non-suited
on this ground alone."

I discern the need to mero motu adopt the approach of
the Court of Appeal set out above and accordingly hold that the
Applicants are
non­suited on this ground alone.

I should mention that Mr. Kennedy SC for the Respondents
did not rely on non joinder in view of the fact that his clients have
counter
claimed in the matter. That however is as far as the counter
claim is concerned. Significantly the counter application is made by
the five Respondents only and is not made by all those who were
elected at the January 2001 conference. The fact of the matter is
that the main application by Applicants is itself merely directed
against the five respondents reflected therein. The order sought
would not only be carried into effect as against those respondents
but would also be prejudicial as against people who are not reflected
in the Notice of Motion. No

12 application was made to amend the Notice of Motion so
as to include all the people who were elected at the conference in
question
including the other three who are automatic members of the
NEC by virtue of their respective portfolios in the party.

(b) Locus Standi

As I see it the point of locus standi in this matter is
very short and will not bear any elaboration. Apart from the First
Applicant
Mabusetsa Makharilele all the other four Applicants have
failed to allege and set out facts disclosing their locus standi in
the
matter. Nowhere is it shown in the affidavits that they would
themselves have been elected but for the alleged irregularity. They
simply "confirm" the contents of Mabusetsa Makharilele's
(First Applicant's) founding affidavit which in turn does not
deal
with their positions except to say that they participated in the said
National Conference of the LCD without more. Nowhere is
it alleged
that they stood as candidates and how many votes they polled if any
or what prejudice they stand to suffer. I have no
hesitation
therefore in holding that these Applicants have failed to establish
locus standi. Their case also falls to be dismissed
on this ground
alone.

13 (c) Dispute of fact

The case for the First Applicant stands on a different
footing from that of the other Applicants. He avers that through a
mix-up of
ballot boxes his ballots were misplaced in other boxes
other than the one he was contesting for (Deputy General Secretary).
As a
result 6 of his ballots were not counted in his favour. He avers
therefore that if these 6 ballots had been included in his tally
he
would have won against his counterpart Motlohi Moeno (The Fifth
Respondent) by one (1) vote. So far so good.

The Respondents' version on this issue however is that
corrections were duly made in so far as the ballots relating to the
positions
of General Secretary and Deputy General Secretary were
concerned but that if the 6 ballots which the First Applicant is
complaining
about were subsequently found in unrelated ballot boxes
to those of General Secretary and Deputy General Secretary
(significantly
after the result had already been published) as First
Applicant maintained then such ballots "amounted to spoilt
ballots"
in terms of a procedure adopted by the Elections
Committee. There was no justification or "acceptable reason why
there should
have been such an error." Significantly it is
Respondents' version

14

that the procedure relating to spoilt ballots was
adopted by the Elections Committee "in the exercise of its
discretion and approved
and accepted by the National Executive
Committee members who were present as well as the entire conference"
(emphasis added).
Incidentally I observe that in terms of Section 9
(b) of the 4th Respondent's constitution all decisions or resolutions
made by the
general conference of the party are binding on all the
party members, committees, branches and associations attached to the
party.
That this must indeed be so, in view of the fact that the 4^th
Respondent is an association, is borne out by such cases as
Jocky Club of South Africa v Forbes 1993 (1) SA 649 (A) at 654.

It requires to be mentioned at this stage that very late
in the day and at the replying stage Mr. Pretorius SC for the
applicants
half-heartedly made an application from the bar to refer
the dispute of facts as outlined above to oral evidence. I use the
term
"half-heartedly" advisedly as it became clear to me
during Mr. Pretorius' submission that he was not equivocal and was
himself uncertain about whether an application for referral to oral
evidence was the correct step in the circumstances of the case.
He
was ultimately heard to say that the application was made in the

15 alternative and that his "principal"
submission was that the disputes of fact were irrelevant and that the
matter could
be disposed of on the Applicants' version.

In Di Meo v Capri Restaurant 1961(4) S A 614 (N) it was
held that an application for referral to oral evidence should be made
in unequivocal
terms and should not be made conditional upon the
Court coming to the conclusion, after hearing and considering
argument in the whole
case, that the conflict cannot be resolved
without hearing evidence.

In my judgment the Court has a discretion to be
exercised judicially whether or not to grant an application for
referral to oral evidence
at any stage before judgment. Each case
must however depend on its own particular circumstances. I have taken
the timing for the
application for referral to oral evidence in a bad
light. The Respondents' opposing affidavits were served on the
Applicants' attorneys
as long ago as the 23^rd April 2001
judging by the acknowledgment stamps on the Respondents' papers. It
must have been clear to the Applicants at that stage
that there were
disputes of fact and yet they did nothing about it until they heard
the

16
strength of the Respondents' case in argument
before me. The application is made from the bar without notice and
without supporting
affidavits. There is no explanation furnished why
the Court is treated in this cavalier manner. Referral to oral
evidence would no
doubt further prolong the matter and would as such
no doubt be prejudicial to the parties. At any rate the application
for referral
to oral evidence is opposed by Mr. Kennedy SC on behalf
of the Respondents. All things being considered I have no doubt that
it would
work an injustice to refer the matter for oral evidence at
this stage or at all and I accordingly dismiss the application with
costs.

To the extent that there is a dispute of fact on the
issue of the so called First Applicant's six (6) ballots and to the
extent that
the Applicants seek final relief in motion proceedings it
follows in my judgment that the Respondents' version must be accepted
on
the authority of Plascon Evants Paints v Van Riebeeck Paints (Pty)
Ltd. 1984 (3) S.A. 623 (A) at 634-635. It follows in my view
therefore
that First Applicant's case further falls to be dismissed
on the ground that he is relying on "spoilt ballots" which
are
clearly invalid and of no force and effect.

17 Incidentally this is the meaning ascribed to the
words "spoilt ballots" by the Concise Oxford Dictionary. As
the supreme
body of the 4th Respondent party the national conference
was fully entitled to make this resolution as it apparently did on
the version
of the Respondents.

Even if I may be wrong on the view that I take of the
matter I would at any rate in terms of Rule 8(14) of the High Court
Rules 1980
dismiss the applicants' application on the ground that
there are disputes of fact which they should have anticipated and
that it
was improper for them to proceed by way of motion
proceedings.

(d) Whether the case is a proper one for the court's
intervention

A declaration of rights in terms of Section 2 (1) (c) of
the High Court Act 1978 is a matter within the discretion of the
Court. As
I have stated previously, however, this is a judicial
discretion which cannot be exercised arbitrarily or for a wrong
purpose. It
is a discretion that must be exercised after due
consideration of relevant factors. In this regard it is pertinent to
bear in mind
that the question whether or not a declaratory

18

order should be made under this section has to be
determined in two stages namely:

1. 
   the Court must be satisfied on jurisdictional facts
   that the applicant is a person interested in an "existing
   future or contingent
   right or obligation" and if so satisfied,

   
   

2. 
   the Court must decide whether the case is a proper
   one
   for the exercise of the discretion conferred on it.

   
   

See Durban City Council v Association of Building
Societies 1942AD 27 at 32: Lawrence Motlhokoa v St. Patrick's High
School Managing
Board & 7 Others CIV/APN/17/98 (To be reported in
1999 -2000 LLR).

Apart from the case for the First Applicant which I have
dealt with above the rest of the Applicants have failed to establish
the
jurisdictional facts alluded to in (a) above. They have failed to
make even a token case to show that they are interested in an
existing
future or contingent right or obligation. In this regard I
respectfully agree with the remarks of Watermeyer JA in Durban City
Council
v Association of Building

19 Societies (supra) that the interest of an applicant
must be a real one, not merely abstract or intellectual interest.

Worse still the Applicants have not shown that they
would have been elected into 4^th Respondent's NEC but for
any alleged irregularities. They simply pin their mast to the First
Applicant's case and yet the latter
does not advance their case an
iota. All things being considered therefore I have no hesitation in
finding that the Applicants have
failed to establish their locus
standi in the matter. By the same token I find that this is not a
proper case for the Court's intervention.
There is another reason for
holding this view. It is that all the Applicants clearly have an
alternative domestic remedy which they
have not exhausted namely to
resort to the 4^th Respondent's NEC or to the party
conference. There is for that matter no evidence that the Applicants
have ever resorted to the party
leader himself for a resolution of
the matter before rushing to court as they have done.

Mr. Pretorius SC submits on behalf of the Applicants
that there was a dead lock and that the Court had to resolve the
question as
to which is

20
the lawful NEC before one could resort to local
remedies. I do not agree. Inherent in this submission is an
insinuation that the 2001
NEC is unlawful and yet as I read the
papers nowhere is the election of all the members thereof seriously
challenged except that
of the 5^th Respondent. I cannot
then understand why the Applicants would not feel free to exhaust
their remedies before that NEC. There is no
evidence that they
approached the 2000NEC for that matter or that they called for a
special conference of the 4^th Respondent party to address
the issue.

In Jonker v Ackerman en. Andere 1979 (31 SA 575 (O) the
court 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
and that it is necessary for a person who is
allegedly aggrieved to show that he has been prejudiced.

While there can be no perfect election anywhere in the
world what has happened in my judgment is that the 4^th
Respondent's conference has expressed its desire to be run by the
members that it elected. This Court

21
should and does decline from interfering with the
exercise of a democratic right by the conference to choose their own
leaders. Such
right is entrenched in terms of Section 16 of the
Constitution of Lesotho which guarantees freedom of association.

It must be emphasised that the 4^th
Respondent's conference is the supreme body in the party structure
and as such its decision must always be given effect to.

In view of the conclusion which I have reached in this
matter it is strictly unnecessary to deal with all the issues raised
by Mr.
Pretorius SO in seeking to overturn the election of the 2001
NEC by the 4th Respondent's conference. In passing, for example, he
submits that the conference went beyond the stipulated time and that
therefore the election of the 2001 NEC is invalid for this reason.
With respect this argument is flawed for various reasons. I point
only to the fact that as the supreme body the 4^th
Respondent's conference has the power to decide on any extension of
time to complete its business once such has been commenced with
and
as has previously been stated its decision binds all the members.

22

It certainly made practical sense to complete the
business of the conference rather than postpone it with all the
consequent inconvenience
and expense to the delegates. In any event
it has not been shown that it was calculated to prejudice anybody. It
is significant in
this regard that strictly speaking only the 5^th
Respondent's election is being challenged.

It is pertinent to note that this Court had occasion to
deal with and duly rejected a similar argument as the one raised in
the preceding
paragraphs in Tseliso Makhakhe & 13 others v Molapo
Qhobela & 22 others (supra) (citing John v Rees 1969 (2) ALL ER
274).

I have no doubt in my mind that by seeking to nullify
the entire. elections of members of the NEC 2001 the Applicants are
being unrealistic
and indeed unreasonable to the extreme. They simply
ignore the inconvenience and great expense involved in reconvening
another "annual
general conference" of the party let alone
the question of delay and prejudice. The unreasonableness of
Applicants' application
can best be tested by the fact that while
they have effectively withdrawn their objection to the 3^rd
Respondent's election into the NEC for 2001 thus they

23 nevertheless persist in seeking to nullify even his
own election.

All things being considered I have come to the
conclusion that this is not a proper case for a declaration of rights
sought by the
Applicants.

In the result the Applicants' application is dismissed
with costs. I turn then to the Respondents' counter application.

The Respondents' Counter application

The full terms of the prayers sought for in the
Respondents' counter claim have been set out above. Suffice it to say
that in a nutshell
the Respondents are basically seeking a
declaratory order to the effect that the members of the 4th
Respondent's NEC for 2001 were
properly and validly elected as
members of the National Executive Committee of the Lesotho Congress
for Democracy (4^th Respondent) at the annual general
conference of the party on the 29^th January 2001. They
further seek an order interdicting the Applicants from obstructing,
hindering or interfering with the conduct
of the affairs of the
National Executive Committee of the

24
4^th Respondent.

As I see it, it is not seriously disputed that the 4^th
Respondent conference elected a new NEC for 2001 the members of which
are fully shown above. In this regard I accept the uncontroverted
version of the Respondents that initially the Applicants did not even
raise "any objection to the legal validity of the election
of
the new committee." That was at the stage when the new committee
insisted on a handing over by the outgoing committee of
2000. It is
not disputed and 1 accordingly accept the Respondent's version (see
paragraph 30 of the affidavit of Lesao Lehohla) that
at the first
hand over meeting between the new committee and the outgoing
committee "the outgoing committee members indicated
that they
were not ready with notes and reports which they wished to hand
over." He adds that the new committee members then
"took
them (members of the outgoing committee) at their word and agreed to
postpone the meeting for the purpose of handing over"
(my
underlining). There was no mention at that stage of any challenge to
the validity of the election of the NEC for 2001.

25
It must further be recorded and again this is not
disputed that

several attempts to force the outgoing committee to hand
over power aborted but instead the Applicants launched this
application which
was then used as an excuse for not effecting the
hand over sought. This, despite the fact that Guni J had refused the
Applicants'
prayer for an interim order preventing the handing over
and had ruled that there was no prejudice that the Applicants would
suffer
if they proceeded in the normal way.

Indeed this judgment would not be complete if I did not
quote the uncontroverted paragraphs 36 and 37 of Lesao Lehohla's
affidavit
on behalf of the Respondents. He avers as follows:

"36. The outgoing Committee members and in
particular the Applicants are accordingly refusing to hand over to
the new Committee,
notwithstanding the fact that their term of office
has expired and they have been replaced with a new duly elected
National Executive
Committee, democratically elected and accepted by
the party conference.

26

37. The failure to hand over by the outgoing Committee
is causing serious disruption to the operation of the party and the
conduct
of its affairs. It is effectively paralysing the proper
administration of the party's affairs in that the new Committee (sic)
are
unable to discharge their duties and conduct the affairs of the
party. It is respectfully submitted that there is no lawful basis
for
the Applicants' conduct, that there is no basis to (sic) the relief
claimed by the Applicants in their application, and that
instead
appropriate relief should be ordered to declare and confirm the
validity of the election of the new National Executive Committee
members, and to grant other appropriate relief, as set out in the
notice of counter application to which this affidavit is attached."

It follows from the aforegoing Respondents'
uncontroverted facts which I accordingly accept as correct that the
conclusion is inescapable,
in my view, that the Respondents have
succeeded to establish a clear right, an injury actually committed
and that there is no adequate
alternative remedy. See Setlogelo v
Setlogelo 1914 AD 221.

By the same token it follows in my judgment that this is
a proper case for a declaratory order as sought in the Respondents'
counter

27

application.

Before closing this judgment I should like to record
that the parties are on common ground that as far back as March 2001
the Applicants
duly withdrew the application against the 3^rd
Respondent Lesao Lehohla with . costs. In my opinion it was grossly
irresponsible for the Applicants to have sued the 3^rd
Respondent in the first place as he was and is a Member of Parliament
representing 4^th Respondent. Section 8 (b) (ii) of the
constitution of 4^th Respondent clearly stipulates that
members of parliament representing LCD (4^th Respondent)
shall qualify to participate in the party annual general conference.
On this score I consider that the Applicants' attorneys
are equally
to blame for being party to such a frivolous and indeed baseless
application against 3^rd Respondent. They must be warned
that they run the risk of paying costs de bonis propriis if they
continue to behave in this irresponsible
manner. To make maters worse
they have allowed the attack against 3^rd Respondent's
right to participate in the disputed conference to be continued
vigorously in the replying affidavits notwithstanding
the withdrawal
of the Applicants' case against him. Indeed the time has now come for
legal practitioners to be

28

warned against making their clients' cases their own. In
such a scenario it is always difficult for a legal practitioner to be
of
assistance to the Court (and yet this is his/her professional call
of duty in the first place) nor is it easy to separate the wood
from
the trees so to speak in such scenario.

In the result there shall be an order as follows:

(a) The Applicants' application is dismissed with costs.

2. 
   The Respondents' counter application is granted
   as
   prayed with costs to be paid by the Applicants jointly
   and
   severally, the one paying the others to be absolved

   
   

3. 
   The costs awarded to the Respondents in terms of
   this
   order shall include the costs consequent upon the
   employment
   of two counsel.

   
   

4. 
   For the avoidance of doubt it is hereby declared
   that
   the 4^th Respondent's NEC for 2000 has ceased to
   have
   any status as the NEC of the party.

   
   

M.M. Ramodibedi

JUDGE

3^rd day of August 2001

29
For the Applicants : P. Pretorius SC
(with him Adv. D. Metlae)

For
the Respondents: P. Kennedy SC (with him Adv. S. Phafane)