CIV/APN/172/87
IN THE HIGH COURT OF LESOTHO
In the matter of:
TSELISO RAMOCHELA Applicant
and
PSHATLELLA MOSHOESHOE 1st Respondent
KABELO PITSO 2nd Respondent
ALBERT MALISE 3rd Respondent
MOEKETSI THORELA 4th Respondent
MOEKETSI LIJANE 5th Respondent
'MAMPHO MATETE 6th Respondent
BERENG NAMANE 7th Respondent
PETER MAKHALANYANE 8th Respondent
RAPONTS'O MONESE 9th Respondent
LEKHUPANYANE NTEREKE 10th Respondent
MOEKETSI RALIENGOANE 11th Respondent
'MATLELIMA MOTAUNG 12th Respondent
LESOTHO INDUSTRIAL COMMERCIAL AND
ALLIED WORKERS UNION N.O. 13th Respondent
THE NATIONAL EXECUTIVE BOARD 14th Respondent
RULING ON POINTS RAISED IN LIMINE
Delivered by the Hon. Sir Peter Allen on the 23rd day of June 1987
The applicant is a member, or a former member, (it is not clear which), of the National Executive Board (14th respondent) of the Lesotho Industrial, Commercial and Allied Workers Union (13th respondent). He has brought this application against the Union and various office holders on the grounds that its Annual Delegates Conference, held in May 1987, was conducted in an unconstitutional manner.
At an ex parte hearing before Lehohla Ag. J. on 31 May 1987 the applicant was granted an interim interdict
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against the respondents restraining some of them from holding themselves out as the legally elected National Executive Board and others from handing over office monies, books and assets of the Union to the Executive Board pending the outcome of the substantive application.
When the matter came up for hearing before me Mr. Hlaoli for the respondents raised two points in limine.
His first preliminary objection was that there was no urgency in the matter and that neither an ex parte hearing nor an interim interdict was justified. There would be no prejudice to the applicant if the respondents proceeded with their union business as there was no foundation of fear, prejudice or apprehension revealed by him. Mr. Nthethe for the applicant argued that there were genuine grounds to fear that by handing over power to an improperly elected body, together with the assets of the Union, there was reasonable apprehension that the assets would be squandered by people who were without accountability. He referred to paragraphs 28-30 of the Founding Affidavit. These read as follows:-
Despite all these unconstitutionalities , it is a proposed plan of the 1st to 12th Respondents herein, and I verily believe they will carry it out, to hand over all the monies, books and assets of the 13th Respondent to the National Executive Board which was elected during and as part of the proceedings of the said Conference of the 2nd and 3rd May 1987. According to the plan the handing over is to take place on the 31st May 1987.
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All these acts which are in contravention of the Constitution of the 13th Respondent have caused a lot of confusion among members of the 13th Respondent and there is great fear that the monies and assets of the 13th Respondent will be squandered by the unconstitutionally
elected National Executive Board should this proposed plan materialise. It is my humble submission that should this application
not receive prompt attention which it deserves, the 13th Respondent will suffer irreparable harm and prejudice and all to the dire detriment of the members too. In my submission, this is a matter which requires urgent relief. "
An applicant for an interdict must satisfy the Court on three matters:-
that he has clear right on his part;
that an injury has actually been caused or there is a well-founded apprehension that an injury will be caused by the respondent; and
that there is no other remedy open to the applicant which will afford any adequate protection from the mischief which has been or is being done or is threatened;
(See Setlogelo v Setlogelo 1914{AD) 221, followed in M. Moabi v K. Moabi & Others 1980(2) LLR 407).
On the first point presumably the applicant's right is based on his standing as an alleged office bearer of the Union. I say "alleged"
here because the first respondent in para. 5 of his "Answering Affidavit" asserted that the applicant had not been re-elected
to that office. At any rate, no doubt he could have based
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his right or interest upon his being just a member of the Union, but he should have stated this to be so and he did not.
The second point concerns an injury or apprehension of an injury caused by the respondent. As will be seen in para. 30 of the Founding
Affidavit (supra) the applicant's submission is a novel one for, rather than alleging an injury about to be caused by the respondent
he in fact alleges an injury to the respondent. This is an extra-ordinary and illogical situation. Surely if an injury to the respondent is feared then it should be the res-pondent who applies for protection, not the applicant. This peculiar situation may well result from the fact that the applicant appears to be standing and acting alone. No other members of the Union have joined him in this action and he is not appearing as a representative or a group of members. One cannot help feeling that, if a majority of the other members of the Union accept the situation, why does the applicant stand out against them? What sort of a mandate does he have? Could it be, as the first respondent has suggested,, that the applicant is simply disgruntled and discontented because he was not re-elected? The Supporting Affidavit of Lesole Lefere merely agrees with the applicant and it sheds no light on this particular point.
Whatever the reason, the applicant has not claimed that he has been injured or his rights have been injured or that he apprehends injury to himself or his rights or property. Yet that is a requirement for an interdict.
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In para 29 of the Pounding Affidavit (supra) the applicant avers that "these acts ..... have caused a lot of confusion among members of the (Union) and there is great fear that the monies and assets will be squandered -......" There is no evidence at all to support this bare allegation and hence no reason to believe it to be true. Once again Lefere's Supporting Affidavit is silent about this aspect of the matter. Again it is noticeable that the applicant has not been joined by any other union member with similar fears, which might perhaps have lent some strength to his own. I find his claim in this respect very unconvincing as it appears to me to be based upon illusory and unsubstantiated apprehensions and I do not accept it.
As for the third requirement for an interdict, presumably the remedy open to the applicant is to prosecute his claim, such as it is, and let the Court decide it without asking for an interim interdict. At any rate I am satisfied that the interim interdict granted here was neither appropriate nor proper in the circumstances and consequently it must be discharged.
The second preliminary objection was apparently aimed at the legitimacy or appropriateness of the whole claim. Mr. Hlaoli submitted that the applicant ought to have made his complaints or objections to the proceedings at the conference itself while it was taking place rather than waiting to come to Court about it. There was clearly some substance in this argument since nothing was said about this aspect in either the Founding
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or Supporting Affidavits. In fact, it was mentioned by the applicant for the first time in his Replying Affidavit (para.6) in which he disclosed that he had raised some unspecified objection at the conference. But the maker of the Supporting Affidavit, Lefere, not only made no objection to the proceedings himself at the conference, he he claimed, even boasted, that he had "fully participated"
in all the deliberations and transactions of the conference, which thus included the election of the very National Executive Board that he and the applicant are complaining about.
Thus Lefere first voluntarily participated in electing a Board which he now wants to be declared illegal. That is called blowing hot and cold, and he cannot do this.
At this stage I cannot make a decision on the merits of the applicant's claim, such as it is, but from what has been revealed so far, I would say that, from his point of view, the outlook is rather bleak.
Turning now to the respondents, it would appear that they are not standing on very firm ground either.
There are 14 respondents of whom the first 12 are people. Of these 12 people only one, the ninth respondent Rapontso Monese, has filed a Notice of Intention to Oppose and a Supporting Affidavit. The others have done nothing at all. Mr. Hlaoli informed the Court that he represents all of the respondents but that cannot be so. A respondent who fails to file a Notice of Intention to Oppose is in the same position as a defendant who fails to enter an appearance. He has no locus standi and so
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no right to appear or to be actively represented in the case (see Rule 8.(9)). He can attend the hearing but not take part in it.
Moreover the first respondent actually filed the Answering Affidavit without first having filed a Notice of Intention to Oppose. This was most improper and the Registry should have been alert to this. The Registry is not there simply to receive any and every document proffered to it for filing. The Rules have to be complied with and the Registry must see to it that they are so in this respect.
Mr. Hlaoli insisted that he does in fact represent all of the respondents but he agreed that there had been an error in their failure to file opposing notices. He asked the Court to condone this omission, presumably under Rule 59. However, the filing of such notices is absolutely fundamental as far as the defence is concerned. Without them, as I have already indicated, the respondents have no locus standi. There can therefore be no question of overlooking or condoning this and I am not prepared to do so. The only course open to the respondents is to accept the consequences or to examine whether they are in a position, and have a desire, to apply to amend or rectify the pleadings or to make some other suitable application in this connection. But the Rules must be complied with.
As a result of my findings this now leaves the parties on both sides with various problems and headaches.
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Prevention is bettor than cure and, if there had been rather more thought and care taken by both sides, no doubt these problems could have been avoided. The cure is now really in their own hands and probably the best cure, in my opinion anyway, would be for the parties to get together and settle their differences out of Court. That is what I would strongly advise.
Meanwhile, as a consequence of my findings above, the interim interdict will be discharged forthwith. Costs will be in the cause.
P. A. P. J ALLEN
JUDGE
23rd June, 1987
Mr. Nthethe for the Applicant
Mr. Hlaoli for the Respondents
