CIV/APN/54/2011
IN THE HIGH COURT OF LESOTHO
In the matter between:-
MABOELLA LEBABO 1ST APPLICANT/INTERVENER
THUSO LITJOBO 2NDAPPLICANT/INTERVENER
And
MAFA THIBELI 1ST RESPONDENT
RAMOSHE MARUMO 2ND RESPONDENT
RAMMAPNE MALEKE 3RD RESPONDENT
TSOANELO RAMAKEOANE 4TH RESPONDENT
TEBOHO SEKATA 5TH RESPONDENT
NATIONAL EXECUTIVE
COMMITTEE OF THE LESOTHO
CONGRESS FOR DEMOCRACY 6TH RESPONDENT
LEADERSHIP CONFERENCE OF THE
LESOTHOCONGRESS FOR
DEMOCRACY 7TH RESPONDENT
LESOTHOCONGRESS
FOR DEMOCRACY 8TH RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 15th February 2011
Summary
Application for intervention –whether applicants have direct and substantial interest in the outcome of the proceedings – whether applicants have locus standi - applicants members of political party and a universitas which has the right to sue and be sued in its name – applicants’ interest in the outcome not distinct from that of the party cited as co-respondent and thus only political and not legal – applicants do not have locus standi – application dismissed.
In this application for intervention the applicants seek an order permitting them to intervene as correspondents in CIV/APN/54/201 (the main application) and to file their opposing affidavits if any within three (3) days of the granting of that order together with costs.
The crux of the applicants’ case is that they have a direct and substantial interest in the matter because they are members of the Lesotho Congress for Democracy (LCD), 8th respondent in this application and were part of the decision to call a Special General Conference which the 1st to 5th respondents herein are challenging in the main. That in order to determine this issue, the test this Court should apply is whether they have a legal interest in the subject matter which may be prejudicially affected by the judgment of the Court in the proceedings in the main and they aver they do.
The 1st to 5th respondents herein oppose the application on the ground that the applicants for intervention have no locus standi to bring this application and that they do not have a personal and substantial interest that is enforceable at their instance.
A brief background to these entire proceedings is that following the decision of the 7th respondent which was made pursuant to petitions filed by 26 constituencies of the Lesotho Congress for Democracy (LCD) 8th respondent herein, directing the National Executive Committee (NEC) 6th respondent to prepare for a special general conference, the special general conference was called to take place on the 19th – 20th March 2011. This is common cause.
Consequent to that the applicants in the main brought an application before this Court in which they seek inter alia, a declaration that the resolution by the 7th respondent (2nd respondent in the main) reached on the 20th – 21st November 2010 calling for the March Special General Conference unconstitutional and null and void and to interdict and restrain the 6th respondent (3rd respondent in the main) from holding the Special General Conference in March pending the determination of the main application. It is in those proceedings that the present applicants seek an order permitting them to intervene.
In support of the submission that the present applicants have a direct and substantial interest in the outcome of these proceedings both in their individual capacities as card carrying members of the LCD and as office bearers, Advocate K. Mosito sought to rely on amongst others, the decision of my brother Peete J in National Executive Committee of the BCP and Another v Mbuli and Others CIV/APN/80/2001 (unreported) wherein the learned Judge reiterated with approval the test to be applied in determining an application of this nature in the following words:-
In this enquiry the court must be satisfied upon the papers that there exists a prima facie case that applicants seeking to intervene have a direct and substantial interest in the subject matter of these proceedings which may be prejudiced by an order or judgment of the court.”
Advocate Mositoadded that intervention is a species of joinder and that in terms of the decision in Amalgamated Engineering Union v Minister of Labour 1969 (3) SA 631, ‘the question of joinder should … not depend on the nature of the subject-matter … but … on the manner in which, and the extent to which, the court’s order may affect the interests of third parties’.
Further that in determining the same issue, the Court in the case of Gordon v Department of Health, Kwazulu-Natal 2008 (6) SA 522 (SCA) formulated the approach as being first to consider whether the third party would have locus standi to claim relief concerning the same subject matter, and then to examine whether a situation could arise in which, because the third party had not been joined, any order the court might make would not be res judicata against him, entitling him to approach the courts again concerning the same subject matter and possibly obtain an order irreconcilable with the order made in the first instance.
Advocate Mositosubmitted further that for the reason that they were petitioners or at least part of the bodies that made the decision for the convening of the Special General Conference, the present applicants clearly have a legal interest in the outcome of the main application. That in our law nothing requires that for a third party to have entitlement to intervene they have to have a separate interest that they do not share with any other person.
In motivation of the issues raised by the 1st to 5th respondents, Advocate Sakoane contended that it is common cause that the main application is a contest between applicants and the Lesotho Congress for Democracy (LCD) of which the applicants for intervention are members. That that being the case, the issue that arises is whether in a case where the Party is before Court to defend decisions taken by its structures, persons and structures subordinate to it can claim to be third parties having personal and peculiar interests.
Secondly whether, members and structures subordinate to the National Executive Committee have the right to appear in litigation against their party as co-respondents. It was Counsel’s submission that the answer must be in the negative and that regard should be had to the fact that in terms of the decision in Ex parte Sudurhavid: in re Namibia Marine Resources v Ferina 1993 (2) SA 737 (Nm HC) at 740 the principle of the law of intervention is that if any third party considers that his interest will be affected by a case which is pending, he is not bound to leave the care of his interest to either of the litigants but has a right to be enabled to intervene to champion the defence of his own rights and that the present applicants are not such third parties.
Counsel for the 1st to 5th respondents also made the submission that the 8th respondent (LCD) is a registered association under the Societies Act No. 20 of 1966 and that the effect of such registration is that the Party can sue and be sued in its name and not in the name of its members in terms of Section 11 thereof. Further that the Party sues and defends suits through the National Executive Committee and that decisions concerning litigation must be taken by the NEC on the party’s behalf and not by any other organ thereof.
To this end, Advocate Sakoane referred the Court to the decision in Mokhotlong Constituency Committee and Others v Pakalitha Mosisili & 30 Others 1991 – 1996 (1) LLR 671 (HC) at 712, in which the Court stated that members of the Party by its Constitution have entrusted to the Party the fullest power of dealing with the interests of the Party and acting in defence thereof and are thus enjoined to submit themselves and their interests to the course followed provided it is intra vires the powers of the Party and also follows the Party Constitution.
Further that branches and constituencies being subordinate to the NEC and the latter being responsible to the General Conference of the Party, it is not necessary to join them in litigation as their interests are represented by the Party through the NEC.
I now proceed to deal with the issue whether the applicants for intervention have made out a case that they have a direct and substantial interest in the matter which may be prejudicially affected by the judgment of the Court in the main proceedings.
It is my view that in order for me to be able to properly determine this question, the answer will be determinant on the consideration of who the present two applicants are vis-à-vis the parties that are cited as respondents in the main application. Of course they are who they say they are but it should be obvious even to a layman that the question is not posed literally but legally. Thus, the Court is not interested in their names which they have clearly spelt out in the papers in as much as it wishes to understand and /or appreciate what they allege is the basis of the direct and substantial interest which they claim to have in the main application as third parties. That is the import of the question.
To that end the 1st applicant describes himself as the chairman of the Machache Constituency Committee of the LDC, 8th respondent in this application. He adds as follows at paragraph 5 of his founding affidavit:-
“The committee resolved to petition the calling of the conference in my presence and I was part and parcel of the decision makers therein. It is therefore in essence our decision, inter alia, which is being challenged by the applicants in CIV/APN/54/2011. In all the circumstances I respectfully aver that all the constituencies that had petitioned the calling of the special conference and which are being referred to in the founding affidavits of the applicants have a direct and substantial interest in the convening of the conference.” (my emphasis)
The 2nd applicant in turn describes himself as the National Chairman of the Youth League Conferences and Gatherings and that he is in that position, a member of the Leadership Conference of the LCD. He adds as follows in relevant parts at paragraph 3 of his supporting affidavit:-
“I further wish to inform this Honourable Court that in my capacity as a card-carrying member of the LCD and its youth league National Chairman of its conferences and gatherings, I have a peculiar interest which is in the nature and substantial interest in the outcome of the present application.”
The LCD, the 8th respondent herein and the Party which the applicants aver to be members and office bearers of, is described in the main application where it is cited as the 3rd respondent, in relevant parts as ‘both a universitas and a political party registered in terms of the Societies Act NO. 20 of 1966 and the National Assembly Election Act NO. 10 of 1992 respectively’ whereas the Leadership Congress of the LCD, the 2nd respondent in the main is described as a constitutional organ of the LCD established in terms of Article 5.3 of the Constitution of the LCD. These descriptions are not in issue.
It is my opinion that in terms of the above descriptions and averments, the two applicants’ stated direct and substantial is linked to and/or derives from the fact of their being members of the LCD and office bearers in the different bodies as they have averred. This in turn begs the following question; where the LCD with respect to the 1st applicant, and the LCD and the Leadership Conference with respect to the 2nd applicant have been cited as respondents in the main, can the Court find that the two applicants have a direct and substantial legal interest peculiar, and as such, distinct from that of the two that would necessitate that they be allowed to intervene in their individual and/or official capacities? Put differently, can the Court find that as they aver, the applicants are third parties, which would amount to their interest being peculiar and thus, separate and distinct from that of the respondents in the main?
As already stated, the submission made in this regard by the 1st to 5th respondent’s Counsel is that, being a voluntary organization registered under the Societies Act, the effect of such registration is that the Party (LCD) can sue and be sued in its own name and not in the names of its members and that in light of the decision in the Mokhotlong Constituency Committee Case (supra), so long as the National Executive Committee and the Party are cited, there would be no need to cite organs subordinate to it whereas the applicants’ Counsel submits that in accordance with the Court’s finding in the same case, personal rights can also be considered depending on the prevailing circumstances.
In that case, in quoting with approval the sentiments of my brother Monapathi J in the case of Leonard Ntsoebea v. Basotho National Party (CIV/APN/75/940 (unreported) the learned Mofolo J stated as follows at p712 of his judgment:-
“I might also remark at this juncture that with reference to individual members submitting themselves to the party and entrusting to it the fullest power of dealing in the interests of the party; what the judgment envisages is that such interests will be intra vires of the party and not ultra vires of the power of the party and moreover, that in carrying out its duties Congress (in this case conference) will follow the letter of the constitution this court could never subscribe to the proposition that because individual members have surrendered their powers to the Party Congress or Conference they are thereby zombies and mummies never to raise their voices against unconstitutional acts of Congress or Conference.”
I do not think that anyone can dispute this statement. It is absolutely correct in my view. In other words, I also cannot envisage a situation especially within a constitutional democracy such as ours, where any person would be expected to sit back and do nothing where he feels that the highest decision making body of an organization he voluntarily associated with, is acting in contravention of and against the letter and spirit of the organization’s constitution and laws. Indeed such an individual(s) has the right to challenge such unconstitutional and/or illegal acts.
I however pause here to ponder whether I am dealing with a similar situation in casu. It is my opinion that that is an issue to be dealt with in the main application in terms of the contents of the papers that have been filed therein. In the present case i.e. the intervention application, the applicants are not challenging any unconstitutionality or contravention of any law or regulation by any organ or structure of the Party, the NEC included. Rather, they seek permission to intervene in proceedings in that respect in the main. It is therefore my opinion that the Mokhotlong case is of not much assistance to this Court at this stage and with respect to this particular issue.
However, the issue was dealt with by the Court in the case of National Executive Committee of the BCP and Another (supra) where it had to determine inter alia, non-joinder of some 365 delegates. In his judgment, my brother Peete J expressed the following comments at page 6 thereof:-
“In my view the persons listed in “KS1” are party delegates originating from sub-branch structures of the party and indeed are representatives of the party’s rank and file. The interest they have is in my view political rather than legal and any order of court cannot directly affect or prejudice that interest. They are not in my view necessary parties.”
Mindful of these remarks and coming back to the present case, in the light of the fact that the applicants herein aver that their interest derives from their being members of the Party and the Leadership Conference respectively, both which have been cited as parties to these proceedings, and that they were part of the resolution to call the special general conference, I am persuaded to accept the submission that their purported rights are subsumed under those of the Party and as such, their right is a political rather than a legal one and has no peculiarity about it. Thus, that Court’ judgment is on all fours and resonates with the facts in the present application insofar as the issue of the applicants being regarded as third parties is concerned. Thus, I am satisfied that they are not third parties distinct from the Party and or its organs.
Indeed it is my further view that to find otherwise would create an absurdity where every member of the Party and/or body within the Party would apply to be joined and/or allowed to intervene in the proceedings yet their interest in the outcome derives from the very fact of their being members thereof.
Further, such a decision would open floodgates of litigation where every individual member of a voluntary association could approach this Court to be permitted to intervene on the basis that they have a personal interest in the outcome of the proceedings which would in turn create both a procedural and logistical nightmare in that, finality of litigation with respect to the real and substantial issues would be well nigh, if not totally impossible. Therefore I respectfully wish to align myself with the Court’s sentiments in the Mokhotlong case (and other authorities referred to therein) as expressed at p7 of the same judgment in the following words:-
“To join the 365 delegates would necessitate the inclusion even of all the party members who elected them as delegates at grass-root level. In my view the 13 respondents (all members of the disputed National Executive Committee) can effectively safeguard any party interests. Moreover if joined as respondents, the record would be burdened unnecessarily with some 365 answering affidavits all confirming what has been stated in Sekoto’s affidavit.”
However, as I have already shown, Counsel for the applicants also sought to rely on the very same judgment especially at pages 23 – 25 in support of his contrary submission that the applicants’ interest herein is a legal one such that the Court must permit them to intervene. My perusal of the judgment reveals that at that juncture, the question for determination was whether the NEC can encroach on the rights of its office bearers - personal as they may be – without such persons being cited as necessary parties. To that end the Court had this to say:-
“I have a discretion to exercise judicially at this stage of the proceedings. I have to bear in mind that the court should not exclude from proceedings parties whose rights or interests the ultimate judgment may affect. All that needs to be established is right prima facie which may be prejudiced. If the intervening parties are not granted leave to intervene, they have all the right to institute in their own capacity afresh (sic)application before this court and to again traverse the long track we have hitherto convered (sic).”
I have already stated that the issue for determination at that stage was whether the NEC could infringe upon the rights of its office bearers without them being cited as necessary parties to the proceedings. It is therefore my opinion that what obtained therein is clearly distinguishable from the present facts because in casu, the applicants for intervention are not challenging either usurpation of their rights nor are they claiming that their positions as office bearers are being threatened either by the NEC or any of the Party structures in which case I would accept that the Court’s order would prejudice their personal rights thus entitling them to be heard in that capacity.
Instead, their case is premised on their desire to intervene in proceedings where the calling of the Special General Conference is challenged and which conference was called in the interests of the Party as a whole and not those of individual members, their respective participation in the process precipitating the calling thereof notwithstanding, hence my finding that the Court’s remarks in that respect have no bearing on the present issue.
Having said that, I now turn to deal with the second leg of the test to be applied in determining the existence of a direct and substantial interest namely in terms of the position stated in Gordon’s case (supra), to wit, whether if the applicants herein are not joined and/or allowed to intervene, this Court’s order would not be res- judicata against them entitling them to approach the Court again concerning the same subject matter and possibly obtain an order irreconcilable with the first one.
In terms of their averments in their respective affidavits, the decision that the 1st to 5th respondents are challenging in the main is that of the 26 constituency committees which are made up of some of the Party members. This in turn poses the question; can it therefore be correct to find that once this Court has made an order in the main, that order would not be res judicata against the applicants and/or other individual members, thus entitling them to approach the Court again concerning the same subject matter?
It is my opinion that the answer must be in the affirmative, i.e. it would be res judicata because in terms of their averments, the applicants have come before this Court on the basis of the Party’s decision through its various bodies of which they are members, consequently, any subsequent proceedings in that respect would be on the same subject matter and same course of action thus the order that this Court is going to make in the main will be binding on each and every member of the 8th respondent regardless of his/her status within the Party the applicants and the other constituencies committees members included.
Thus, while I absolutely cannot find fault with the sentiments that were expressed by the Court in the case of Minister of Local Government v Siswe 1991 (1) SA 677 (quoted to this court) to the effect that intervention is a procedure that imports natural justice in that it requires and permits the affected party to be heard- audi alteram partem and that the non-inclusion of a third party who has a direct and substantial interest can violate this natural law principle, it is my view that the said sentiments are not applicable in this case because I have already found that the applicants herein are not third parties as envisaged by the law/decided cases.
Having found that the applicants are not third parties and that their interest herein derive from their being members of the party and are not distinct, I now proceed to deal with the issue whether they can be held to have the locus standi.
At paragraph 10 of the 1st applicant’s founding affidavit he deposes as follows;-
“I aver that even the interim order sought in casu should not be granted on the basis of the fact that interested constituencies and/or persons whose decisions precipitated the calling of the conference have not been joined and yet they have a direct and substantial interest in the outcome of this application.”
It follows logically that I cannot find that as individual members within the Party which Party has been duly cited, the applicants herein have the locus standi to intervene in their individual capacity as members because the NEC, the Leadership Conference and the LCD are respondents and they oppose the main application both on their own behalf and on behalf of all the individual members and different party structures/bodies.
In other words, all three respondents in the main are not bodies in a vacuum but are such as made up of the individual members, constituencies and committees etc, as the case may be, the present applicants in casu included. Thus I similarly wish to adopt the remarks in the Law of South Africa, 1st Reissue Volume I inwhichthe learned author propounds at p 322 paragraph 489 that:-
“Since an universitas is recognized as a legal entity apart from its members, there has never been any doubt that it could sue and be sued in its own name. The resolutions of the management committee or of the general meeting are deemed to be the will of the universitas, provided that the resolution was made in accordance with the constitution or within the scope of authority of the management committee of the general meeting.”(My emphasis)
In addition, it was not successfully disputed on behalf of the applicants that the decision concerning litigation must be taken by the NEC and not by any other organ in terms of decided authorities. Rather, much was made about the fact that no particular Party constitutional provision was quoted and/or annexed for the Court’s perusal in that regard, precipitating the question by the Court whether in spite of the fact that reference was made to the constitution by the Parties themselves the Court should close its eyes to, i.e. ignore such a provision which unfortunately invited a rather cheeky and flippant retort from the applicants’ Counsel to the effect that whether the Court can open or close its eyes it will not find same which unfortunately did not address the Court’s concern. At any rate, I am not aware that anyone can read with their eyes closed. What I am certain of is that I am not blessed with that supernatural ability.
Having said that, I find it apposite to mention that interestingly in seeking relief from this Court, the applicants also seek to invoke the same constitution of the Party but lo and behold, have also not annexed it. I refer in this regard to the contents of paragraph 7 of the founding affidavit in which the 1st applicant makes the following assertions in support of this application:-
“I wish to inform this Honourable Court that in terms of the Constitution of the LCD a party of which I am a member, I am obliged to uphold the values and integrity as well as policies of the party. I have been legally advised and I verily belief the same to be true and correct that the constitution of the LCD constitutes a contractual bond between members of the parties interse.” (emphasis mine)
But be that as it may, the 1st to 5th respondents Counsel have annexed parts of the Constitution and a fair translation of its articles 7.1.2 and 12 respectively (for this Court’s perusal) to their heads of argument and they read as follows in relevant parts:-
7.1.2 The National Executive (sic)of the Lesotho Congress for Democracy will represent the General Congress. The functions of the National Executive Committee shall be:
a) To promote the aims and objectives of the Party, which are outlined in the Second Part of this Constitution.
b) To implement decisions and resolutions passed by the General Conference of the Party.
c) …………………….
d) To ensure that the Constitution, law and bye-laws of procedure in the Conferences of the Party are adhere (sic)to.
12 b) On behalf of the General Conference, the National Executive Committee shall be vested with the power to manage all the affairs of the Party.”
A proper reading of these provisions leads me to agree with Counsel for the applicants on his submission insofar as he contended that none of the provisions contain a clause on how the party can and should institute legal proceedings. However, that very same issue was also dealt with by the Court in the NEC of the BCP case (supra) and I am persuaded by the Court’s approach in its determination thereof in stating as follows at p 18 of the judgment:-
“The constitution of the BCP however does not contain a clause on how the party can institute legal proceedings. It stands to reason that the National Executive Committee properly constituted does not derive from this constitution any power to institute legal proceedings sua nominee. But logical inference indicates that if an association can under law sue or be sued, the National Executive Committee as the high executive organ elected by the popular annual conference of the party is the only organ of entity in the party structure which can protect the interests of the party in the interim pending the holding of the party conference.” (emphasis mine)
It was not argued that this position has ever been successfully challenged and as stated earlier, it is my opinion that to arrive at a different conclusion would lead to an absurdity where any individual member, committee, branch, constituency, organ or body of such an organization would be found to have the locus standi to sue or defend on behalf of the party.
Thus, the remarks expressed in the case Kahn v Louw, N.O. & Another 1951 (2) SA p 194 at 211 - 212 (quoted to this Court) also finds resonance with this Court where De Villiers J.P. stated that:-
“The Constitution of a voluntary organization is the charter of the organization, expressing and regulating the rights and obligations of each member thereof. In relation to that organization, to the constitution of which he has subscribed, he is no longer a free and unfettered individual: he is a member bound by his agreement, and to that extent has surrendered his private individuality.”(my emphasis)
Over and above this, Article 12 b) of the Constitution is broad and all inclusive enough to persuade me to find that it should be given a generous interpretation which in turn would mean that management of all the Party’s affairs would include the bringing and defending of suits in the name of the Party. This is more so taking into account the provisions of Section 11 of the Socities Act 1966 which providesas follows in parts and insofar as is relevant to this issue:-
“Provided that unless the rules of the society otherwise provide, a registered society may, under the name under which the society is registered
(a) sue and be sued;”
In addition, High Court Rule 13 (2) provides that a partnership, a firm or an association may sue or be sued in its own name.
It is therefore my finding that the applicants have not successfully made out their case that they have the locus standi to be joined and/or to intervene either as individual members or as office bearers within the party structures because they and indeed every other member and/or office bearer, are duly represented in the 3 respondents in the main in those respective capacities and that the point in limine was one well taken by the 1st to 5th respondents and I accordingly uphold it.
It is on the basis of all the foregoing reasons that I dismiss this application with costs.
N. MAJARA
JUDGE
For the applicants : Advocate K. Mosito (K.C)
Advocate Koto
For the respondents : Advocate S. Sakoane
Advocate Z. Mda
