IN THE HIGH COURT OF LESOTHO
CIV/APN/169/2011
In the matter between:-
MAJARA JONATHAN MOLAPO APPLICANT
V
NATIONAL EXECUTIVE COMMITTEE
OF THE BASOTHO NATIONAL PARTY 1ST RESPONDENT
BASOTHO NATIONAL PARTY 2ND RESPONDENT
THESELE MASERIBANE 3RD RESPONDENT
RANTHOMENG MATETE 4TH RESPONDENT
TS’ITA LETSIE 5TH RESPONDENT
KOPANO FRANCIS MAKOA 6TH RESPONDNET
‘MABATLOUNG LILLANE 7TH RESPONDENT
PIUS TANKI MOLAPO 8TH RESPONDENT
MOKHESENG RAGNALD TEKATEKA 9TH RESPONDENT
HOSANNA SAKO 10TH RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice M. Mahase
On the 23RD JUNE , 2011
Civil Procedure – Motion proceedings on urgent basis – Notice to raise, advance and argue points of law – Whether permissible and competent to raise and argue points of law at any stage of the proceedings even on appeal – Rules 8 (10 (c) and 30 of the Rules of this Court.
The applicant approached this court on an urgent basis; with notice to the respondents on the 24th March 2011. He had asked the Court to grant him prayers which appear in the notice of motion dated the 24th March 2011.
The application was moved before my sister Hlajoane J on the 24th March 2011. She had the matter postponed until the 25th March instant so that she could have time to read the papers therein filed. Counsel for the applicant had appeared before court on that day at 5:30 p.m.
On the 25th March, she granted prayer 1 (one) only pertaining to dispensation with regard to notices and modes of services on account of urgency of the matter. The rule nisi was made returnable on the 26th March 2011 at 10:00 a.m.
However, on the 26th March 2011, counsel for parties herein, and for reasons not clear to this court; appeared before my brother Monapathi J. he handled this matter until on the 11th April 2011 when he postponed it and ordered that the rule nisi be returnable on the 9th May 2011.
There is no court minute indicating what next transpired between the 9th and the 21stMay 2011. This application was ultimately argued before this Court on the 21st May 2011.
It is apposite to indicate that at the time when the application was argued before this Court, the Annual Conference; subject-matter in this application had already been held. The third respondent had been elected leader of the second respondent. This means that prayer 2 (a) in the notice of motion was not granted.
In a nutshell, the applicant has asked this Court to grant him an order in the following terms:
1- That the Rules pertaining to notices and modes of service be dispensed with on account of urgency;
2- That the Rule Nisi be issued returnable on the date and time to be determined by this Honourable Court, calling upon the respondents to show cause if any, why;
a) The Annual Conference of the 2nd respondent held on the 25th , 26th up to 27th March 2011 shall not be cancelled pending the outcome of this application;
b) The 1st respondent shall not be directed to make fresh proper and necessary preparations for convening within sixty (60) days from the date of final court order of a new conference in place of the aborted conference of the 25th, 26th and 27th March 2011 and that it should run on the same agenda as that of the aborted conference of the 25th, 26th and 27th March 2011.
Alternatively
This Honourable Court may not reschedule the dates of (the) conference to dates this Honourable Court may deem appropriate.
c) The credentials of the 3rd to 4th respondents to contest the position of a leader of the 2nd respondent shall not be declared null and void for being contrary to principles of natural justice.
d) The purported “election of constituency committees” shall on the behest of the 1st respondent and/or his agents (shall) not be declared as irregular, null and void;
e) The 1st respondent shall not, in unison with the dejure candidates herein, for the sole purpose of the election of the leader of the 2nd respondent establish a credentials committee and an electoral committee;
f) Only proper credited delegates shall not be allowed in the conference hall, including those persons agreed upon by the stakeholders to assist in the management of the electoral process; any police on security assignment and other members and those on observer status shall not be restrained from entering the conference hall as well as being on the ground of the conference centre;
g) The respondents shall no be ordered to pay costs in the event of opposition;
h) The applicant shall not be granted such further and/or alternative relief;
3- That prayer(s) 1 and 2 (a) and (b) be made interim order(s) pending the outcome of this application.
The application is being opposed by the respondents. Circumstances which precipitated into the launching of this application are clearly spelt out in the applicant’s notice of motion and in his founding affidavit to wit paragraphs 12 up to 47. I need not repeat same. Suffice it to mention that in brief, the applicant is challenging preparations and the procedures which preceded and which also allegedly occurred before and during the progress of the second respondent Annual Conference. He is challenging the constitutionality of the composition and election of the delegates as well as the voting procedures adopted during the election of the third respondent as party leader as indicated above.
It must also be indicated that the applicant and the sixth up to the nineth respondents were contestants for the leadership of the second respondent.
As already indicated above, the Annual Conference in question had already been held when this application was argued before this Court.
This explains why applicant has prayed for an order of court cancelling the said Annual Conference pending the outcome of this application.
Put differently the instant application has been overtaken by events. Be that as it may, the respondents have not opposed this application on the basis that the instant application has already been overtaken by events.
The respondents have raised a point of law in which they challenge the locus standi of the applicant. The notice filed in this regard is dated the 10th May 2011 but it bears no date stamp of this Court showing or indicating when exactly it was filed in the registry of this Court.
This has, among others, been addressed to the applicant’s attorney of record, who has in turn filed a notice in terms of the provisions of Rule 30 of the Rules of this Court. In that notice, the applicant is challenging and or objecting to the step which has been adopted by the respondents in raising the point of law referred to above. It is his case that this is an irregular or improper step.
From the above, it can safely be assumed that the respondents’ belated notice to raise the point of law in question was brought to the attention of the applicant’s counsel.
In brief, the applicant has clearly stated that the said notice and or the step taken by the respondents by filing that notice to raise a point of law after filing of the three sets of affidavit by parties’ herein is an irregular step.
He has spelt out the various ways in which he alleges that he respondents have adopted and or have taken an irregular step contrary to the provisions of Rule 8 of the Rules of this Court. Refer to applicant’s said notice at pages 95 up to 96 of the paginated record.
It must be indicated once more that the notice to raise a point of law herein referred to above, has not been accompanied by any affidavit in which it is explained why the said point of law was not raised at the appropriate time referred to or allowed by the Rules of this Court. This Court has not been referred to any Rule of this Court which authorizes or which allows the raising of a point of law at this stage of the proceedings, without an accompanying affidavit explaining reasons for such delay.
The respondents’ attorney has only indicated in that notice that it is permissible and competent to raise, advance and argue points of law at any stage of the proceedings even on appeal.
I will deal with this issue in due course when I deal with arguments advanced by the respective parties herein. I must indicate that it is alleged on behalf of the applicant that the procedure herein adopted by the respondents of raising this point at this belated stage makes it impossible for the applicant to respond to it issuably since one cannot file any other affidavit to respond to that point. That is, it is applicant’s case that the step taken by the respondents in this regard is directly flying in the face of the provisions of Rule 8(10) (c) of the Rules of this Court.
The respondents have, in their heads of argument in support of this notice to raise this point of law at this belated stage of the proceedings and contrary to the proceedings and contrary to the provisions of Rule 8(10) (c) supra, cited and referred this Court to a number of cases in which courts have allegedly allowed this kind of a step in the pleadings to be taken.
While I will deal with such arguments in due cause, it must be emphasized that it is highly imperative for litigants to strictly adhere to the provisions of the Rules of this Court which are meant to regulate the conduct of parties to litigation. These Rules are also meant to regulate the filing of pleadings and provide a sequential orderly manner in which pleadings are to be filed.
The respondents have nowhere tried to explain or furnish this Court with any reasons as to why they could not raise this point of law in terms of or in compliance with the Rules of this Court; particularly, though not limited to same, in accordance with the provisions of Rule 8(10)(c).
It is the considered view of this Court that this is one of the cases in which any departure from the ordinary provisions of the Rules of this Court should have been explained. This is moreso because this Court has not been approached nor asked to condone a departure from the adherence of the provisions of this Rule 8 of the Rules of Court.
Assuming without conceding that this is so, even if this Court had exercised its discretion in terms of the provisions of Rule 8(12), it could not Mero Motu exercise its discretion to permit further affidavits to be filed. The respondents and or one of the litigants would have to move this Court to allow and or to exercise its discretion to permit it to file further affidavit(s). There is no such application motivating this court to exercise such a discretion.
Of course, each case has its unique or perculiar circumstances, calling for it to be treated differently from the others. As alluded to above, this is a case in which the respondents should have adhered to the provisions of Rule 8 (10) (c) or Rule 8 (12) for the following reasons:-
- Long before this instant application was launched, the first respondent had been communicating with the applicant on matters or issues which relate to the first and second respondents; to wit see annexure “MJM2” at page 37 of the record, dated the 14th March 2011. The above coupled with the unchallenged averments of the applicant clearly indicate that the first and second respondents, knew then that the applicant herein is a member or claims to be a member of the second respondent.
- There is otherwise no reasons imaginable as to why the first and the second respondents would engage in such communication in relation to its official party issues with a none-member of the second respondent. They even invited him to a meeting with the N.E.C. so that they could discuss the issue pertaining to the leadership contest which was to be held in or on the 22nd March 2011.
- There is nowhere in all the correspondence in which the applicant wrote to them as a member of the second respondent, that the respondents through its secretary general replied to inform the applicant that he is not recognized by the first and second respondents as its member and as such they would not have anything to do with him.
- In the same breadth, there is correspondent emanating from the Mohobollo Constituency No. 12 from wherein the chairperson thereat has indicated and informed the secretary general of the second respondent that the applicant is one of the members of the Mohobollo B.N.P. constituency who has subscribed and who has been accepted as a member of the second respondent. Vide annexure “MJM 11”, wherein the name of applicant appears as member number 15.
I note and accept as a fact therefore, that according to the constitution of the second respondent, it is the constituency committees which accept a person as a member of the second respondent and that having done so, theirs is to send the names of old and newly accepted members as well as of those who have renewed their membership as members of the second respondent to the head office for the head office, through it, N.E.C. to send or issue to such members the appropriate party membership cards. The same was done by the Mohobollo constituency referred to above, but the N.E.C. of the second respondent retained such cards as they reported that they are presently out of stock. It is not their case that they have notified the chairman of this constituency or the applicant himself that they have not accepted the membership of the applicant. They could not do that because acceptance of a person as a member of the second respondent is a prerogative of the individual constituencies and not of the N.E.C.
The fact that the applicant has been so accepted as a member of the second respondent in terms of the provisions of the second respondent’s constitution has not been gainsaid by the respondent. This is clear from the other surrounding circumstances of this case. Refer to applicant’s founding affidavit paragraphs 13 to 16.
The fact that the applicant and others were paraded at a pitso held at Maqhekung ha Mabote as he alleges and for a specific purposes is an issue that cannot be over looked, whether or not it was done in terms of the provisions of the second respondent’s constitution. It is unchallenged that it was meant for and as a courtesy gesture to those recognized members of the second respondent who had displayed their intention to contest the vacant seat of the second respondent’s party leader. In fact the applicant and the second respondent through the averments of the deponent to this answering affidavit have joined issue in this regard.
A million dollar question to be answered is whether it is the practice of the first, second and third respondents to accord such a parade to people who are none, members of the second respondent?
All of the arguments and papers filed before this Court regarding the issue as to whether or not the applicant has at all material times been a member of the second respondent point only to that fact. The respondents have not ever vigorously at any stage prior to the launching of this application filed on behalf of the applicant ever contested or demonstrated through a debate or through documentary correspondence addressed to the applicant or addressed to the chairman of the Mohobollo Constituency Committee of the second respondent, denied nor challenged his membership status in the second respondent.
The applicant’s averment that he has always since around 1963 been a staunch member and supporter of the second respondent is butterressed by the silence and failure to plead to this issuably by the respondents as well as by the contents of annexure “MJM 12” herein attached to the applicant’s replying affidavit.
The fact that only a few years ago, from 2008 to 2011, the applicant as well as fourth respondent were members of the then National Executive Committee of the second respondent has not been gainsaid by the respondents. This Court takes judicial notice of the fact that in fact, the deponents to the opposing affidavits; namely the fourth respondent and ‘Makhotso Mats’umunyane were in February 2008, all members of the second respondent who in their capacities as such adopted a new constitution and repealed the old one or the previous constitution of the second respondent.
The above coupled with the fact that there is no documentary proof to the effect that the first and second respondents have had the membership of the applicant in the second respondent terminated makes their belatedly raised point of law to the effect that the applicant has no locus standi in judicio to launch this application, highly suspect.
With the greatest respect, it is the considered view of this Court that the respondent’s allegation in this regard is not bona fide and that, since this is their sworn evidence before this Court; it borders on perjury.
I note in particular and with concern that according to the contents of annexure “MJM12”, the current secretary general of the second respondent still held the position of secretary-general while ‘Makhotso Mats’umunyane, the current chairman of the first respondent, according to paragraph 8 of the answering affidavit, was then holding the position of Organiser, Mountain region. The applicant was then holding the position of publicity secretary; the position he held until the 27th January 2011.
Last but not least on this issue, the Court has been referred to annexure “MJM 13” of the applicant’s replying affidavit in which he wrote to the current secretary-general of the second respondent. In that letter, the applicant was informing the secretary-general of the second respondent of his intention to terminate his membership in the National Executive Committee and as a publicity secretary. This is dated the 27th January 2011. It must be noted that in that letter (page 119 herein); there is nowhere where the applicant says that he is terminating his membership in the second respondent.
This further butterresses the fact that at all material times prior to the 24th March 2011 inclusive of the period the 21st May 2011; the applicant had never ceased nor terminated his membership in the second respondent. To allege otherwise and or in the way that it has been submitted on behalf of the respondents that applicant had automatically ceased to be a member of the second respondent in the year 2002 when applicant had allegedly contested a national general election as an independent candidate would be absurd (for want of a proper word) because there is absolutely nothing placed by the respondents before Court indicating that indeed that has been so since 2002. The correspondence herein attached between the applicant and the structure of the second respondent reveal a contrary scenario; namely that the respondents and with knowledge and or acquiesce have accepted that the applicant has always been and is a member of the second respondent.
I pause to observe that even an allegation; serious as it is, that the applicant ceased to be a member of the second respondent way back in the year 2002 is unsupported and was only argued or raised for the first time from the bar; during argument before this Court thereby making it impossible for the applicant to plead to same issuably. This is an ambush by the respondents on the part of or against the applicant.
It is trite law that no party will be allowed to ambush and take his opponent by surprise. With the greatest respect, this argument has no merit.
The applicant has clearly been supported in this regard, i.e. that he is a member of the second respondent who has renewed his membership by paying the necessary fees and who has always paid his dues and who ultimately was recommended by the Mohobollo constituency committee thereat to stand for and to contest for the position of leader of the second respondent. Vide the supporting affidavit of Mr. Mashili Nkhasi – pages 125 to 127 of the replying affidavit.
This now brings me to the parties’ arguments and cases cited for and against the issue in question and it being raised, advanced and argued for the first time at any stage of the proceedings even on appeal. Indeed there is a plethora of decided cases dealing with this issue and as I have indicated above, each case has perculiar and or unique circumstances which may differ from others.
This Court subscribes to the authorities herein relied upon by each or on behalf of each of the parties herein. It would appear that there is no hard and fast rule which parties are to rely upon as to when a point of law may be raised.
Vide Parow Municipality v. Joyce and McGregor (PTY) LTD. 1973 (1) S.A. 937 cited at page 3 of the applicant’s heads of argument where it was observed that:
“In motion proceedings the ordinary rule is that three sets of affidavits are allowed. This is however not an inflexible rule and court may in its discretion permit the filing of further affidavits. No hard and fast rule has been laid down in what really is a matter of practice but here are certain guidelines which the courts according to various decisions have tried to adhere to. Every case should be determined not only according to its own circumstances but having due regard to the contents of the further affidavit(s) and especially whether some reasonable explanation has been given or is apparent for late filing. If there is an explanation which negatives mala fides and the court can be satisfied that there was no prejudice which cannot be remedied by an award of wasted costs, a court should to my mind incline towards allowing a party to put his full case before the court”.
(My underlining)
Comparing the instant case with the above cited authority and what was said by the Court of Appeal in the cases of the Attorney General and Others v. Tekateka, LAC 2000 – 2004 367 at 373 C – F: to the effect that litigants must make out their case in their affidavits and that a court will not allow a litigant to make a case in argument. (My underlining)
See also the case of Commander of Lesotho Defence Force and Others v. Ramokuena and Another, LAC (2005 – 2006) 320 where the Court of Appeal said:
“It is now well recognized that it is in particular wrong to direct the attention of the other party to one issue and then attempt to canvass another”.
There is no doubt herein that the respondents have not at all offered any explanation as to why they could not raise this issue in their affidavits. Neither have they explained why they could not straight away invoke the provisions of Rule 8(10) (b) and (c) and or Rule 8(12).
This is one of those cases in which the court would encourage the respondents to have raised the issue of locus standi at the beginning of the proceedings as was warned by the court in the case of Marematlou Freedom Party v. Independent Electoral Commission and Others; to wit see page 4 of the applicant’s head of argument.
This is said in the light of the fact that at all material times and before this application was argued before this court, the respondents had regarded the applicant as a member of the second respondent who had even, without any objection whatsoever, been recommended properly by the Mohobollo constituency to stand and contest the position of the leader of the second respondent.
It has already been alluded to above, that among other things, the N.E.C. of the second respondent, had through its secretary general even invited this staunch member of the second respondent and who himself once served as a member of the N.E.C. of the second respondent, to a meeting so as to discuss a way forward in regard to the holding of the Annual Conference of the second respondent; now subject – matter in this proceedings.
They cannot now be heard to say that he is no longer one of them merely because, as a party member, he in now challenging the constitutionality of the said conference and so on. As a member who has indeed subscribed to the constitution of the second respondent, he has a right to voice his objections and or reservations when all else has failed. There is no doubt in the mind of this Court that the applicant is a necessary, interested party, who has a direct interest in the outcome of the second respondent’s Annual General Conference; especially the election process.
The respondents have failed to refute all allegations that the applicant is and has always been a member of the second respondent at all material times up to the 21st May 2011. Vide the unchallenged averments or argument submitted on behalf of the applicant in paragraph 3.5.1 and 3.5.2, page 7 of his heads of argument.
Without necessarily deciding the correctness or not of the submissions advanced on behalf of the respondents herein, to wit: paragraph 1 of their heads of argument dated the 20th May 2011, this Court has come to the conclusion that in the instant application the applicant as locus standi in this proceedings by virtue of this having demonstrated positively and on a balance of probabilities that he has always been and is a staunch member of the second respondent.
Indeed this Court is alive and aware of the legal principles and authorities cited herein by and on behalf of the respondents; to wit
- The Commissioner of Insurance and Others v. MKM Marketing LTD and Others, CIV/APNS/334 to 337/2008.
- Marematlou Freedom Party (supra).
- Paddock Motors (PTY) LTD. v. Ingesund 1976 (3) S.A. 16 (A) at 23 D – G.
and
- Attorney General and Others v. Kao, LAC (2000 – 2004) 656
and other cases therein filed on behalf of the respondents.
The applicant has established that among others, he is a member of the second respondent and that he has been such a number since 1963. He is supported in this regard among others by the Mohobollo Constituency (supra). Also the correspondence and the interaction between members of the first and second respondents and the applicant alluded to above, point to one thing only; namely that the respondents have at all materials times regarded and accepted the applicant as one of the staunch supporters and numbers of the second respondent.
The respondents have failed to establish that since 1963 to date, the applicant was not a member of the second respondent and in terms of the relevant provisions of the second respondent’s constitution.
Cases in point and cited in support of the applicant are:-
- Lehohla v. National Executive Committee of the Lesotho Congress for Democracy; 1997 – 1998 LLR 104 at 117 B-F.
- Thibeli and Others v. National Executive Committee of the Lesotho Congress for Democracy and Others, CIV/APN/54/2011 ( not yet reported)
It is for the above reasons and regard being had to the surrounding circumstances of this case, that this Court has come to the conclusion that the said point of law raised herein should and is accordingly dismissed with costs.
It must be also pointed out that none of the respondents have filed nor have they demonstrated in which basis they claim to be eligible members of the second respondent.
Of course, there is no objection or opposition to their status in the second respondent but this court is greatly concerned by the frivolous and vexations nature in raising of this point which with respect has no substance. This is one of those important cases in which frivolous untenable, vexatious minor technical issues should be avoided due to the importance of this case as well as due to the high standard of integrity that is expected that people in the position of the litigants herein should display to the public. For those people who aspire to one day govern this country, they should be seen to be people who maintain very high standards of integrity and tolerance. This I say with the greatest respect to all.
In fact it would do everybody a lot of good if political party members, especially those belong to the same party could find a political solution to their political misunderstanding.
This now brings me to deal with the merits of this case. Mindful of the fact that here this Court is dealing with a constitution (the supreme law) of the party; one has to determine if the applicant has indeed made out a case showing that the process preceding the holding of the Annual Conference of the second respondent (herein-after referred to as the conference) was flawed.
It has been submitted on behalf of the applicant that in terms of the constitution it is the duty and responsibility of the secretary general of the second respondent to see to it that constituency committees of the second respondent are in fact functioning – vide page 23 of the Constitution, articles (5) (vi), which inter alia provides that the secretary general:
“Shall be responsible for ensuring that the various party committees and other structures have been established and that they function as required under this constitution”. (my underlining)
It has been argued in this regard on behalf of the applicant that nowhere in the constitution has the secretary general (the 4th respondent) been empowered to delegate his functions and responsibilities to anyone else other than to the assistant secretary general.
The argument of the applicant is actually that, contrary to the clear provisions of the constitution, the fourth respondent delegated his powers to the fifth respondent; one Ts’ita Letsie and the others who he has referred to in his founding affidavit.
It is noted by this Court that in terms of the provisions of article 8 (6) of the second respondent, the assistant secretary general is the one who is empowered and or mandated to complement the secretary general in all duties and responsibilities of the latter, and shall in the absence of the secretary-general be responsible for performing all functions and duties of that office.
It is important to note in particular that the wording used in these articles 8(5) and (6) and indeed in all other articles; are expressed in mandatory terms. This means that it is the intention of the drafters of this constitution that such provisions should not be deviated from, but that those whose function is to execute the functions and duties therein indicated must adopt and comply with the same strictly.
Put in simple terms, it presupposes that compliance with the provisions of those articles should be strict and not be deviated from.
The Court notes that the secretary-general (4th respondent) has not pleaded issuably to the applicant’s contents from paragraph 24 of his founding affidavit and from paragraph 5.2 up to other paragraphs detailing the irregularities complained about. For instance, he has not pleaded nor respondent in any way to the contents of annexure “MJM 8”. It trite that failure to admit or to plead issuably to averments raised by a party to litigation renders the averments in question admissible and accepted as such. Vide:-Plascon – Evans Paints LTD v. Van Riebeeck Paints (PTY) LTD 1984 (3) 623 (A)
In annexure “MJM 8” at page 45 of the record, the applicant is proofing that indeed, and contrary to the provisions of constitution; certain people therein named have usurped the functions or duties and responsibilities of the secretary-general and or that the secretary-general has delegated his powers to such people contrary to the above shown provisions of the constitution to which the applicant and the respondents have subscribed.
Indeed, annexure “MJM 8” (supra) confirms in clear words that which the applicant complains about in his replying affidavit; namely that ….. the N.E.C. played not only a supervisionary role but it also actively participated in the election process of the holding of constituency committee elections for the entire district of Leribe from the 20/03/2011 up to the 23/03/2011.
It is not the argument of the respondents that those people whose names appear in annexure “MJM 8” (supra) and who were dispatched by the N.E.C to hold constituency committee elections in the entire district of Leribe on the above shown dates were and or that they are constituency committee members of the district of Leribe, as envisaged in the provisions of article 11 (6) (a) (i) up to (xi) of the constitution.
It is also noted that, the writer of that annexure “MJM 8” (supra) has clearly usurped the functions and duties of the secretary-general by also having written that annexure “MJM 8” to the chairpersons of the constituency of the Leribe district. This is not one of his functions as per the provisions of article 8 (10) (i) up to (iv) of the constitution.
This, with respect, is the function of the secretary general who is mandated by the constitution to be responsible for; (among other things), …. The management of the party’s affairs as well as for its day to day office administration services. Vide article 8 (5) (i).
The alleged actions about which the applicant is complaining are many. See in this regard, paragraphs 29 up to 42 of the founding affidavit.
The fourth respondent has in answer to the allegations of the applicant repeatedly and with emphasis stated that he has requested and or authorized the fifth respondent to write annexure “MJM 7” and also says that the fifth respondent was duly authorized by respondent in his (5th respondent) positions as a National Organiser to execute (his) functions of ensuring that constituency committee elections were undertaken: vide paragraphs 22, 23, 24, 25 etc. However, a proper perusal and reading of his answering affidavit will reveal that he is blowing hot and cold as to which exact body of the N.E.C. and its members is empowered to authorize and or to delegate which functions and duties to whom and under which circumstances.
In fact his admission that he delegated certain of his duties, functions and responsibilities to certain members who are members of the N.E.C. as envisaged by the provisions of article 8(a) (i) up to (xiv) is the very complaint of the applicant in this application.
It will be recalled that he applicant’s argument is that nowhere in the constitution of the second respondent has the secretary general been empowered to delegate some of his duties, functions and responsibilities except as has been provided in the constitution.
The fourth respondent has nowhere in his answering affidavit nor in argument before this Court indicated any provision of the constitution which empowers him to delegate to any member of the first and second respondent his powers under the constitution.
Be that as it may, a very careful reading and scrutiny of the second respondent’s constitution, reveals that, of the members of the N.E.C of the second respondent; it is only the assistant secretary general who is empowered in mandatory terms, to assist and complement the secretary general in all duties and responsibilities of the latter. It is specified that such duties and responsibilities of the secretary general, shall be performed by his assistant only and only in the absence of the secretary general.
In other words, an averment that the secretary general delegated to some people, whether correctly or not, according to the provisions of the constitution while he (the secretary general) was not absent to perform certain of his duties for any reason except for or due to his absence, does not advance the respondents’ case by any means.
This is moreso because, nowhere has the National Organizer of the second respondent been empowered by the constitution of the second respondent to assist the fourth respondent in the execution of the fourth respondent’s duties and responsibilities as has been done in respect of the assistant secretary general.
Even assuming without conceding that the secretary general of second respondent had been empowered by the constitution to delegate any or all of his duties, functions and responsibilities to some other persons other than to the assistant secretary general, there is nothing filed of record in support of his averment and as proof that it was him and nobody else who had delegated his duties and responsibilities to some other person(s).
The secretary general herein has also not in anyway attempted to furnish an explanation as to why he had to delegate his duties and responsibilities to anybody. This he should have done because the constitution from which he derives the power to perform certain, specified duties in the second respondent has in clear unambiguous words provided that he can delegate and or that he should be assisted in the execution of his duties only when he is absent from office and for no other reason. The fact that he was too busy is not the reason specified in the constitution as to why he should be assisted and by the assistant secretary general. In fact, the drafters of the constitution in question have deliberately and for emphasis used or employed the words assist and complement in article 8(6).
The word complement is described in the Concise Oxford English Dictionary to mean:
1. A thing that contributes extra features to something else so as to enhance or improve it.
2. The number or quantity that makes something complete.
The wording therein used in articles 8(6) clearly demonstrates in the particular care and specificity in which the drafters of this constitution have employed so as to remove any doubt and or inconsistency as regards the duties of the secretary general and that of his assistant.
It is the considered view of this Court that such a wording was designed so as to avoid any doubt as to the meaning and the extend to which the secretary general of the second respondent could be assisted by whom and under which circumstances.
It is a fact which nobody can deny that the choice of words used display that it was the intention of the drafters of that constitution that the secretary general should not lightly refrain from doing his duties thereby curtailing his powers or making it incumbent upon him to actually perform his functions and avoid delegating his duties therein to anybody at the slightest excuse. It clearly displays the extend and the seriousness or the importance attached by the 2nd respondent to the office of the secretary general.
That also explains why it has also been provided that, unlike all other N.E.C. members of the second respondent, he (secretary general) “shall as may be feasible be a full time employee of the party”. Vide article 8(5) (iv).
The argument that it would be impossible for the secretary general to be all over on a daily basis in executing the duties, functions and responsibilities of the second respondent does not advance the case of the respondents.
A proper reading of the constitution – i.e. of article 8(5) presupposes and calls for the strict compliance with the provisions of the constitution in question; otherwise there is no reason why such duties and responsibilities of the second respondent have not by implication or otherwise been extended to cover or to encompass other members of the N.E.C.
It is the considered view of this Court that it would not be appropriate and that it would create uncertainty with regard to the office of the secretary general if it were to be argued, (as seems to be the argument of the respondents) that the N.E.C. is also empowered to authorize that the specified duties of the secretary general could also be performed or executed by any person to assist in the discharge of any specific assignment including such duty or assignment as has already been assigned to the secretary general in terms of the provisions of articles 8(5) (iv) of the constitution.
It is trite that the constitution of a political party is the supreme law of the party. Indeed a constitution determines the powers and duties as well as obligations of the respective organs of the party. Any encroachment into such constitutional powers and duties should and must in the normal course of things be sanctioned by a party’s constitution.
The constitution of the second respondent is no exception to this general principle of the law – vide the following cases:-
Stadium Area Constituency No. 31 v. Molapo Qhobela and Others 1999 – 2001 LLR 997(H.C. at 1019C) And
- Basotholand Congress Party and Another v. Molapo Qhobela and Others: CIV/APN/410/1999 to which this Court has been referred in argument advanced on behalf of the respondents.
It is a matter of common cause that the only party organ which has been empowered in express, unambiguous, mandatory words by the constitution of the second respondent; to assist the secretary general is the assistant secretary general and no other party or organ of the second respondent.
In other words, there is no corresponding or lateral article or phrase in the said constitution which empowers any other organ of the second respondent to assist its secretary general in the execution of its specified duties, functions and responsibilities; in particular in terms of the provisions of article 8(5) (i) up to (xiii) except or but for the assistant secretary general.
It follows therefore from the above that anything done contrary to the clear provisions of this constitution is null and void.
The averment that the N.E.C. had the requisite mandate to see to the conducting of the constituent committees and such elections as contained in paragraph 30 and 31 of the answering affidavit is not supported by reference to any specific articles of the constitution in question. The deponent therein has only stated in general terms that the first respondent has a mandate to see to the conduct of constituency committees and that the constituency committee elections were duly and properly conducted by the first respondent.
There is nowhere, where in the functions and responsibilities of the National Executive Committee; to wit article (e) (i) up to (xvii) it is specifically provided that one of its functions is to conduct constituency committee elections.
The deponent to the answering affidavit has not referred this Court to any provisions of the articles of the constitution of the second respondent which supports his averment that the first respondent is actually empowered by its supreme law to conduct the elections of constituency committees. The provisions of article 8 (h)(10) (i) and (ii) to which he has referred this Court does not support his case. It deals with the functions of the President of the second respondent.
It should further be emphasized that while most of the contents of the answering affidavit are highly repetative and unnecessarily irrelevant, this Court has noted that the deponent to this answering affidavit has at paragraph 37 once again joined issue with the applicant to the effect that the tenth respondent was mandated to conduct the constituency elections by the N.E.C. as its agent – whatever is meant by the word agent.
There is no basis laid down upon which the N.E.C and not the fourth respondent had to mandate the tenth respondent who is not even a number of that N.E.C. to perform the duties of the secretary general or alternatively those duties which according to the constitution in question should have been executed or performed by the assistant secretary general.
This therefore clearly indicates that the denial by the fourth respondent that there had been any irregularities with regard to the election of constituency committees and in violation of the second respondent has no merit. This is particularly so because the deponent to this answering affidavit could not refer this Court to any specific articles of the second respondent where the whole or any one member of the second respondent N.E.C. is mandated to execute the duties, functions and responsibilities of the secretary general; alternatively of the assistant secretary general.
It is noted that the deponent to the answering affidavit has not pleaded issuably to the issues raised by the applicant pertaining to annexure “MJM 8” which has clearly been authored and signed by the fifth respondent. This should then been admitted as a correct fact; and in that way it butterresses the complaint of the applicant. Vide:- Plascon – Evans (supra)
I must also indicate that the said section 6 (a) of the constitution referred to herein is none existent; at least according to the copy of the constitution which has been availed to this Court. What appears thereat is a form entitled Oath of Allegiance to the party. This clearly has nothing to do with contents of this annexure “MJM 8”.
Lastly, this Court notes that the urgency of the matter fell off the very minute that the application was postponed to subsequent other days for reasons which were stated in the Court which had initially been handling the matter.
This Court therefore refrains from making any pronouncement on this issue; moreso since the conference, subject matter herein nonetheless went ahead.
Consequently, this Court has come to the following decision with regard to the issues raised for its determination:
Firstly, it is the considered view of this Court that the respondents have dismally failed to show that the applicant had not been a long standing member of the second respondent; in terms of the constitutional provisions of the second respondent.
Secondly, and consequently it follows that the point of law raised herein must and should fail for the reason herein stated above. This point is accordingly dismissed.
This brings this Court to now deal with the prayers sort by and on behalf of the applicant in his notice of motion.
It must before hand be pointed out that it is not within the jurisdiction of this Court to grant to litigants any prayer and orders which are not based and or confined within the constitutional provisions of the entity in question.
A Court of law can only grant relief sort bearing in mind the constitutional provisions of the second respondent in the instant case.
It is accordingly ordered as follows:
- That the purported elections of the constituency committees about which the applicant has complaint be and is hereby declared as irregular, null and void.
- It follows therefore that the applicant’s prayers 2(a) and (b) must succeed and they are granted as prayed.
- Costs are awarded to the applicant.
Parties herein are encouraged to always strife to find common ground guided by its constitution and to resort to the provisions contained in the constitution before they approach Courts of law for redress.
They must, in an effort to achieve the above, formulate rules and regulations so as to provide for a regime of local remedy structure which should first be resorted to before aggrieved parties rush to court for redress.
They are encouraged to find a political solution in accordance with constitutional provisions of their party before they approach courts of law.
M. Mahase
Judge
For Applicant : Mr. Q. Letsika
For Respondents: Dr. K. E. Mosito K.C
