HIGH COURT OF LESOTHO
matter between:-MAREMATLOU FREEDOM PARTY APPLICANT
AND OTHERS RESPONDENTS
HON. JUSTICE S.N. PEETE
HON, JUSTICE A.M. HLAJOANE
HON. JUSTICE M. MAHASE
18th OCTOBER 2007
The application — an election petition - being sought to be
withdrawn by the applicant — Marematlou Freedom Party -
first lodged in the office of the Registrar on the 9th March 2007.
2. It is common cause that General Elections were held throughout
Lesotho on the 17th February 2007 and it is the proportional
or allocation of certain Parliamentary seats that was being
challenged as being unconstitutional and improperly distributed
the 1st Respondent.
Notice of Motion
notice of motion prayed as follows:-
"TAKE NOTICE THAT MPHOSI MATETE (hereinafter called the
Petitioner) intends to petition the above Honourable Court for an
as unconstitutional and invalid the final allocation of seats in the
National Assembly by the First Respondent following
as constitutional and invalid the alliance between the LESOTHO
CONGRESS FOR DEMOCRACY (LCD) and the NATIONAL INDEPENDENT
(NIP) to contest the 2007 Elections as a single entity (Party) for
purposes of allocation of seats in a mixed member proportional
representation in the National Assembly;
as unconstitutional and invalid the alliance between the ALL BASOTHO
CONVENTION (ABC) and the LESOTHO WORKERS PARTY
(LWP) to contest the
2007 Elections a single entity for purposes of allocation of seats
in mixed member proportional representation
in the National
the declarations in (a), (b) and (c) above, directing First
Respondent to re-allocate the seats in the National Assembly
accordance with the Formula provided for in
Schedule 5 of the National Assembly (NO.1) (Amendment) Act No.16 of
First Respondent to pay the costs hereof and any other Respondents
to pay such costs in the event of opposing this petition;"
in fact the claim that is being sought to be withdrawn.
4. It is also common cause that in terms of the relevant
provisions1, the Chief Justice fixed the 23rd April 2007 for the
of this election petition by a Panel consisting of Justices
Peete, Hlajoane and Mahase.
5. An argument was made by Mr Ntlhoki that this date of hearing was
also improper in that the applicant had not been given seven
before the date of hearing; he conceded however that on the 23rd
April 2007, he raised no objection on this clear impropriety;
he do so on subsequent court appearances, [see para 28 (infra for
6. In our view, the applicant clearly waived his clear right in
failing to object to the matter being heard on the 23rd April
1 The Court of Disputed Returns (National Assembly Election Petition)
Rules 1993 - Legal Notice 54 Section 104 of the National
Election Order No. 10 of 1992.
7. After several unavoidable postponements, the matter was set down
for hearing on the 2nd and 3rd July 2007 - a Monday and Tuesday
the first week of July. The notice of set down for this hearing was
dated 15th 2007 giving applicant an ample notice period
of almost two
months before the hearing of the election petition.
8. The court record shows that on the 29 June 2007, the applicant
had filed an urgent application seeking the recusal of the three
Justices of the Panel. This was an important application on its own.
9. On Monday 2nd July 2007 the urgent recusal application was
formally moved by Mr Ntlhoki and lengthy submissions were made by
and by several counsel for respondents.
10. The recusal application was refused on the 3rd July 2007 and a
written judgment was later delivered.
11. The main election petition was thus edged out of the roll at the
instance of the applicant. The Panel then ordered counsel
sides to retire and to agree on a date suitable for the hearing of
this election petition. This was an indulgence by the
could have mero metu set the matter down for a fixed date of hearing.
12. A week later - on the 11th July 2007 - Mr Ntlhoki filed a
"Notice of Withdrawal" couched thus:
TAKE NOTICE THAT Applicant/Petitioner hereby withdraws the
application/petition in this matter.
MASERU ON THIS 11th DAY OF JULY 2007.
NTLHOKI & CO Applicants/Petitioners Attorneys"
in terms of Rule 30 and for Condonation
13. This notice of withdrawal attracted an immediate response from
the 1st respondent who then applied on the 13th August 2007
to set it
aside as an irregular process under Rule 43(1)(a) of the High Court
14. First respondent later applied for condonation for having failed
to file the Rule 30 - application within 14 days as required
15. Having heard Mr Moiloa for first respondent and Mr Ntlhoki for
applicant the application for condonation was refused by this
upon ground mainly that the Rules of this Court had been compromised
by the first Respondent. Indeed the application for
made only after the Mr Ntlhoki had raised the point in limine that
the 14 day requirement had not been complied
16. In dismissing the application for condonation, the Court
formally pointed to the Applicant's Counsel Mr Ntlhoki that the
Court/Panel would take the matter of propriety or validity of notice
of withdrawal mero motu. This was not in anyway an espousal
respondents' case but of the court exercising its duty.
Rule 43(1)(a) of the High Court Rules
17. In this regard Rule 43 (1) (a) of the High Court Rules 1980 was
in point. It reads:
"43. (1) (a) A person instituting any proceedings may at any
time before the matter has been set down and thereafter by consent
the parties or by leave of the court withdraw such proceedings."
South Africa their Rule 41(1)(a) reads:-
"Withdrawal, settlement, discontinuance, postponement and
41. (1) (a) A person instituting any proceedings may at any time
before the matter has been set down and thereafter by consent
parties or leave of the court withdraw such proceedings, in any of
which events he shall deliver a notice of withdrawal
and may embody
in such notice a consent to pay costs; and the taxing master shall
tax such costs on the request of the other party.
The decided cases in South Africa regarding withdrawal are helpful
and add authority to our own on the matter.
19. Under our common law practice, a person who has instituted
proceedings is entitled to withdraw such proceedings without the
other party's concurrency and without leave of the court at any time
before the matter is set down. (Franco Vignazia Enterprises
Berry - 1983 (2) SA 290 (c) 295 (H). This is based on the trite
principle of public policy that it is not the function of
to force a person to proceed with an action against his will or
wishes or to investigate the reasons for abandoning or
abandon one -(per Kumbleben J.A. in Levy v Levy - 1991 (3) SA 614 at
once a matter has been set down for hearing, it is not competent for
the party who has instituted such proceedings to withdraw
without either the consent of all the parties or the leave of court.
Protea Assurance Co. v Gamlase - 1971 (1) SA 460 at 465
such leave or consent has not obtained, the purported unilateral
notice of withdrawal is invalid.
Notice of set down — effect of
21. Whether in any given case there has been a notice of set down is
both a mixed question of fact and of law.
22. A notice of set down can, depending on the circumstances, be
made by the applicant or by the respondent with notice to the
Registrar (who is being officially asked to enroll the matter) and to
the other side.
A notice of set down notifies the other party that the matter will be
heard on the date fixed. This is a question or matter of
fact; it is
however a question of law whether such notice of set down was made in
accordance with the Rules.
23. It was Mr Ntlhoki's main contention and submission that when he
filed his notice of withdrawal on the 11th July 2007, there
subsisting or extant "notice of set down" related to this
Petition; and so he submits, on the 2nd and 3rd July
petition's notice of set down was overtaken by the hearing of the
recusal application. That the main petition was consequently
heard on the 2n and 3 July 2007, was solely due to the urgent
application for recusal being heard at the instance of the applicant
himself. He had himself to blame and he should not now say the matter
was not set down.
24. Indeed, at the end of the recusal application and its dismissal,
Mr Ntlhoki and respondents' counsel Mr Moiloa, Mr Molyneaux
Phafane solemnly undertook to find new suitable date for the hearing
of the main petition. In our view, Mr Ntlhoki could
aside - unilaterally cause the matter to be withdrawn without leave
25. We align ourselves with the recent reasoning of our Brother
Molai J. in Mahala Molapo vs Hlonepho Ntsekhe and others —
CIV/P/2/2007 at p.6 where he held that once a petition had been set
down and been postponed on several occasions, the consent of
parties or leave of court ought to have been obtained before filing
with the Registrar a notice to withdraw the election
this petition in casu
(a) the matter had been set down and postponed several times, and
(b) when Mr Ntlhoki purported to withdraw the petition, the consent
of t he respondents or leave of court had not been obtained.
27. We find that on the 15th May 2007 this Petition had been
formally set down for hearing on the 2nd/3rd July 2007 but did not
proceed on those date for reasons already stated. Since it had not
been removed from the Roll, the court's leave or consent of
respondents ought to have been obtained prior to its withdrawal.
28. In exercise of its discretion and conscious to any possible
prejudice to the litigants, the Court also condones in terms of
59 of the High Court Rules 1980 the non-compliance with the Rule 152
which stipulates that –
"15. Whether or not a respondent files an answering affidavit,
or a notice under ride 8
(c), as the case may be, within the period stated in rule 8 (b), as
soon as may be after the expiry of the said period the Chief
shall fix the date of trial of the petition and the Registrar shall
give notice thereof to the parties to the petition
not less than
seven days before the day appointed for the trial "(our
condonation does not in any way prejudice the applicant who in fact
did not object regarding the non-compliance with Section
104 (5) of
the National Assembly Election Order No.10 of 1992. It in turn reads:
"104, (5) Despite subsection (4), the Court shall give all
parties to the petition at least 7 days notice before it begins
proceedings relating to the petition" (our underline)
Court makes the following order:-
1. "The notice of withdrawal dated 11th July 2007 is hereby
declared invalid as being in contravention of Rule 43(1)(a) of the
High Court Rules 1980."
Court of Disputed Returns (National Assembly Election Petition) Rules
1993 - Legal Notice No.54
2. Matter having been taken up mero ntotu, justice requires that no
order as to costs be made, and it is so ordered.
I agree :
Applicant : Mr Ntlhoki
Respondents : Mr Moiloa
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