CIV/APN/34/2005
IN THE HIGH COURT OF LESOTHO
In the Matter Between:
STADIUM AREA NO 31 st APPLICANT
MOYENI NO 65 2nd APPLICANT
THABA-BOSIU NO 37 3rd APPLICANT
QAQATU NO 60 4th APPLICANT
PELA-TSOEU NO 10 5th APPLICANT
And
LEBENYA D CHAKELA (Secretary General) 1st RESPONDENT
NTSUKUNYANE MPHANYA 2nd RESPONDENT
NATIONAL EXECUTIVE COMMITTEE 3rd RESPONDENT
RULING
Delivered by the Honourable Madam Justice N. Majara on the 19th August 2005
This is an urgent application for relief in the following terms;
Ordering 1st, 2nd, and 3rd respondents as persons, as well as in their representative capacities in the political movement and or party commonly in traffic as the Basutoland Congress Party (Henceforth B.C.P) to desist on pain of incarnation for contempt of the High Court every act, means and or devise aimed at or having the practical effect of barring the official delegates of the five applicants singly or cumulatively from attending the annual general conference of the party to be held at BAMBATHA TSITA SPORTING ARENA or
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STADIUM on the 29th and 30th January. 2005 or at any lawful substitute-venue constitutionally possible in the tradition of the
party.
Ordering and enjoining all respondents to accept as legitimate and lawful ALL and every paper, document and or form submitted by the applicant to the National Executive Committee of the B.C.P for the purposes of the envisaged annual general conference to be held on the said dates or substituted dates.
Forbidding all respondents to engage in any way or wise in moves to evade the intended effect of (a) and (b) of this order.
Giving any other relief deemed by the High Court to be adequate to the needs of the applicant herein.
Giving costs hereof to the applicants only if the matter is opposed AND THEN on the attorney and client scale of the LAW Society of Lesotho with effect from the 21st December 2004.
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That paragraphs (a), (b) and (c) herein, operate with instant effect to restrain the respondents and or require of them the specific conduct embodied therein.
Ordering the respondents, to show cause if any, why the entire application should not be granted finally on MONDAY the 7th February, 2005 at 09h30 or so soon thereafter as counsel for applicants may conveniently be entertained.
On the 27th January 2005 Mr Seotsanyana, Counsel for applicants appeared before me and moved this application. I granted them a rule nisi in terms of prayer (f) as stated in the Notice of Motion. The rule was made returnable on the 7th February 2005.
It is not clear from the Court file what happened on the said return date as there is no minute of it. At any rate, the matter came before me again on the 23rd May 2005 when both parties were supposed to argue their case. On the said date however, there was no appearance on behalf of applicants either in person or through their legal representative.
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After Mr Mahlakeng, Counsel for respondents informed the court that he was ready to proceed. I directed the Registrar and the Court orderly to call out the names of the applicants outside the Court room three (3) times but none of them appeared to be anywhere in the Court premises. I then proceeded to hear respondents in applicants' absence especially since there was no apology and/or excuse tendered before the Court on their behalf for their non-attendance.
Mr Mahlakeng proceeded to motivate the points in limine which respondents had raised as contained in their opposing affidavit and
heads of argument, the latter having been duly filed with the court.
The points were as follows;
That the application is improperly before the court in that applicants have not complied with the peremptory requirements of Rule 8 (4), (5) and (22) of the High Court Rules.
That applicants lack Iegitima locus standi in judicio in that the constituencies do not have separate existence from the party and as such are not legal entities capable of suing and/or being sued on their own.
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That applicants are non-suited in that all the respondents are mis-joined since they cannot sue or be sued on their own in respect of the affairs of the party.
That applicants are non-suited for mis-joinder of the Basotho National Congress Party in the matter that directly affects the affairs of the party.
That the affidavits filed in support of the application are irregular, defective and/or improper in that there is no certification by the commissioner of oaths that the deponents know and understand the contents of their affidavits as per the requirements of Regulation 52 (2) (a) of the Oaths and Declarations Regulations,
That the affidavits filed in support of the application are irregular, defective, and/or improper in that the Attorney who signed the Notice of Motion has also attested to all the affidavits in support of the application in contravention of Regulation 7 of the Oaths and Declarations Regulations,
I now proceed to deal with the points raised. Non-Compliance with Rule 8
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Rule 8 (4) of the High Court Rules provides as follows and in so far as is
relevant to the issue raised:
'Every application brought ex parte shall be filed with the Registrar before noon on two court days preceding the day on which it is to be set down to be heard.... "
In casu, the Notice of Motion which is addressed to the Registrar, is couched
in the following words;
"BE PLEASED TO NOTE THAT the applicants herein will, by their freely chosen counsel, move this honourable court immediately after filing hereof to make an order substantially as detailed hereunder, that is to say, that a Rule Nisi, instantly issue thus:..."
Needless to mention, as can be read from the above quoted paragraph, this application was not filed with the Registrar in compliance with the above mentioned mandatory sub-rule and as such, has indeed not been properly filed as has been rightly contended by Mr Mahlakeng. I therefore uphold this point.
Rule 8 (5) in turn provides as follows;
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"Any person having an interest which may be affected by a decision on an application being brought ex parte, may deliver notice
of an application by him for leave to oppose, supported by an affidavit setting forth the nature of such interest and the ground
upon which he desires to be heard, whereupon the Registrar shall set down such application for hearing at the same time as the ex parte application."
With regard to this particular sub-rule, it is clearly meant for any party who might have an interest in any ex parte application being brought before the court. It certainly does not speak to an applicant but rather, to a potential respondent(s) who ought to be afforded a chance to file opposing papers if s/he feels so inclined.
This being the case, respondents herein were unable to comply with the sub-rule due to applicant's failure to comply with the provisions of sub-rule (4) as cited above and were denied a chance to have their say at the time the application was moved as is envisaged by this sub-rule. This was also stated by my sister Hlajoane J in Mapusetso Mahlakeng and 72 Ors v Southern Sky (PTY) LTD and 7 Ors CIV/APN/240/03 wherein she quoted with approval the comments of our brother Mofolo J in the case of LHDA v
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Phatela and Another CIV/APN//8/02. For theses reasons, ] uphold this point.
Coming to the next sub-rule i.e. 8 (22), it requires an applicant in any urgent application to set forth in detail the circumstances which he avers render the application urgent and also the reasons why he claims that he could not be afforded substantial relief in an hearing in due course if the periods presented by this Rule were followed.
In his Certificate of Urgency which accompanied the Notice of Motion, Mr Seotsanyana, counsel for applicants stated as follows;
"I, M.K. Seotsanyana, a practicing advocate of the courts of Lesotho, hereby certify as follows:
That 1 have seriously examined this matter, both in its political, as well as legal aspects especially, as to the practical effect of the prayers sought ex parte on the smooth and peaceful holding of the annual general conference.
That I find the matter most deserving of urgent consideration by the court and being granted urgent relief
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Specifically I find that the particular conference in focus happens only once, that is to say. it is not replicable. Such event can and often does have farreaching consequences affecting the public affairs of at the very least tens of thousands of Basotho.
That it would be ludicrous in the extreme to restrain persons being politically oppressed by their superior organ or organs from getting urgent relief on the basis that some monetary damages in the future might be awarded to redress the mischief of oppression.
Impetus is added by the undeniable fact that the National Executive Committee of the B.C.P has as recently as January, 2003 barred some members and or constituencies only at the opening of the conference concerned. "
I deliberately quoted the whole body of the text word for word so as to go through it with the reader in trying to determine whether the provisions of the sub-rule have not been complied with.
From their wording, paragraphs (a) and (b) respectively do not set out any circumstances which render the application urgent. They are but introductory statements stating that this application is urgent. Paragraph (c)
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in turn states that the particular conference happens only once and is not replicable. I may add that the said conference was supposed to be held on the next day following the one when this application was moved on an urgent basis. But be that as it may, although Mr Seotsanyana does not specifically say in this paragraph that it is the fact of the conference being held only once which would result in the alleged far-reaching consequences that renders this application urgent, I believe that when reading the text in its entirety and not isolating paragraph by paragraph, he has by and large stated out the circumstances as envisaged by the rule. It would therefore be a case of splitting hairs if I were to find that such circumstances have not been set out.
However, having said that, nowhere did I find any reasons having been set out justifying that applicant could not be afforded substantial relief in a hearing in due course if the periods were followed. I do not know if Mr Seotsanyana thought that this was evident or could be deduced from the wording of the Certificate of Urgency. However, I am of the opinion that if this was the case, the rule would not have specifically prescribed that both the circumstances and the reasons should be set out. It would have stopped at the stating of circumstances. It was therefore not enough for Mr Seotsanyana to simply state that the conference would have far-reaching
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consequences. He ought to have gone further and justified non-compliance with the periods as prescribed by the rules because the one (circumstances rendering the application urgent) does not necessarily follow the other (reasons why the periods prescribed should not be followed) as a matter of course. I therefore agree with Mr Mahlakeng that the rule has not been complied with, at least partially. Partial and/or half-hearted compliance is not compliance. Peremptory provisions have to be followed to the letter. I therefore uphold this point.
Lack of legitima Locus standi in judicio Mr Mahlakeng also submitted that applicants lack locus standi in that the constituencies do no have separate existence from the party and therefore are not capable of suing and being sued on their own.
In its founding and supporting affidavits, applicant does not clearly set out if indeed it has the locus standi to sue or be sued apart from the party of which it is a member. This is especially the case because applicants are not natural persons but individual
constituencies belonging to one political party.
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At paragraph 2(a) of Moeketsi Tsatsanyane's founding affidavit, he avers as follows;
"I have been specially mandated by that constituency (Lebatooa) committee to speak and or act for it in all matters pertaining to or related to and or raised by the letters written to the constituency by 1st Respondent on the 21st December, 2004 and 5th January, 2005 concerning the delegation to represent the interests of the constituency at the annual general conference envisaged for 29' and 30th January, 2005 at Maseru. "
The deponent however failed to show the court how he was specially mandated and in what capacity the constituency has instituted the present application i.e. whether or not it is a legal persona capable of suing or being sued on its own or whether is has separate legal existence from the party. In Isaacs' Beck's Theory and Principles of Pleading in Civil Actions p 10 it is stated that;
"It is not, however, any or every collection of individuals which will constitute a juristic person and make it distinct from it (sic) individual members. It is only those associations which have been endowed by legislative authority with the capacity and power of acquiring rights and undertaking obligations, and associations which at common law,
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have the characteristics of a universitas, which are considered in law to be juristic persons.... Two of the essentials of a common law universitas are the capacity, in terms of its constitution, to acquire property apart from the capacity of its members to acquire
property and the fact that in terms of its constitution it has perpetual succession."
I therefore agree with Mr Mahlakeng that in casu, applicants have failed to state and/or show that they have legitima locus standi
under these circumstances and as such I uphold this point.
Mis-joinder and Non-joinder
Mr Mahlakeng contended that applicants herein are non-suited in that all the respondents have been mis-joined since they cannot sue or be sued on their own in respect of the affairs of the party. In their founding affidavit, applicants averred that respondents are sued in their representative capacity. The absence of a replying affidavit from applicants did not help the court much in the determination of whether respondents have rightly raised a legitimate point
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However, in my opinion, the party ought to have been joined because it has a direct and substantial interest in this case. This is born out of the fact that its rights might be affected by the outcome of these proceedings. This position was also adopted by Milne J in the case of Khumalo v Wilkinson 1972 (4) SA 470 at p475 wherein he quoted with approval inter alia, the case of Amalgamated Engineering Union v Minister of Labour 1949 (3) SA. This being the case, I find that this point has been legitimately raised by respondents and although the plea of mis-joinder is only dilatory, I uphold it, more especially because I have already upheld all the other points which respondents have raised. The same goes for the plea of non-joinder which was also raised by respondents whose considerations are more or less the same as that of mis-joinder.
Non-compliance with Regulation 5 (2) (a) of the Oaths and Declarations Regulations 1964
Regulation 5 (2) (a) provides as follows;
"Before attesting an affidavit the commissioner of oaths shall ask the deponent whether he knows and understands the contents of the affidavit and if his answer is in the affirmative the commissioner of oaths shall
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certify below the deponent's signature or mark that the deponent has acknowledged that he knows and understands the contents of the affidavit; "
In casu, all the opposing and supporting affidavits to the application have only been sworn and signed before the commissioner of oaths that the statements are true and correct. Nowhere do they bear the attestation that deponents know and understand the contents therein. This is clearly in contravention of the above rule and as a result the affidavits are rendered fatally defective for the simple reason that the rule is mandatory. See my comments in the case of Hajee Haroon Asman v His worship Magistrate Molefi Makara and 2 Ors CIV/APN/466/2004 p 10 and that of Malebakae Matete v Tholoana Motsoene and 3 ors CIV/APN/184/95 p17 on the effect of non-compliance with peremptory rules. I therefore uphold this point.
Non-Compliance with Regulation 7 of the Oaths and Declarations Regulations 1964
The above rule provides;
"A commissioner of oaths shall not attest any affidavit relating to a matter in which he has an interest
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Provided that for the purpose of this regulation a commissioner of oaths shall be deemed not to have an interest in any affidavit required in connection with the payment of a refund of or exemption from any tax, duty or other public revenue or required for the record in a Deeds Registry or otherwise for the purpose of recording
date of birth;
nationality;
matrimonial status;
amendment of any name;
loss of any deed or document;
in any court, extracts from gazettes or appraisement of sworn appraisers."
It was Mr Mahlakeng's submission that in the present application, the attorney who signed the Notice of Motion also signed the supporting affidavits and as such the above rule has been contravened. He argued further that Mr Klaas, the attorney who signed these documents is the instructing attorney and therefore has an interest in this application.
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In the absence of any statement to the contrary, 1 have no reason to reject this submissions and I therefore uphold it.
For the above reasons this court finds that Respondent has justifiably and successfully raised the points in limine and as a result, I discharge the rule and dismiss the application with costs against the deponents who filed the founding and supporting affidavits to the Notice of Motion personally-jointly and severally, the one paying for the others to be absolved as specially prayed for in paragraph 8 of the opposing affidavit.
N.Majara
Acting Judge
For Applicants : Mr Seotsanyana
For Respondents : Mr Mahlakeng
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