Prof. Nqosa Mahao , BAP President & 3 Others V Motlatsi Maqelepo & 3 Others (C of A (CIV) 03/2025) [2025] LSCA 3 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV)NO.03/2025 CIV/APN/0300/2024 In the matter between PROF NQOSA LEUTA MAHAO, BAP PRESIDENT 1ST APPELLANT CENTRAL EXECUTIVE COMMITTEE OF BAP 2ND APPELLANT BASOTHO ACTION PARTY (BAP) 3RD APPELLANT BAP DISCIPLINARY COMMITTEE 4TH APPELLANT V MOTLATSI MAQELEPO 1ST RESPONDENT TELLO KIBANE 2ND RESPONDENT CONSTITUENCY EXECUTIVE COMMITTEE OF BAP MOKHETHOANENG NO.27 3RD RESPONDENT CONSTITUENCY EXECUTIVE COMMITTEE OF BAP MAKHOROANA NO.20 4TH RESPONDENT CORAM: CHINHENGO AJA VAN DER WESTHUISEN AJA MUSONDA AJA HEARD: DELIVERED: 2 MAY 2025 22 APRIL 2025 FLYNOTE Political Parties — Internal disciplinary proceedings — Jurisdiction of ordinary High Court — Whether High Court may assume jurisdiction to grant interim interdicts pending constitutional relief — Appealability of order assuming jurisdiction — Constitution of Lesotho, s 22 — Court of Appeal Act 1978, s 16(1). The appellants, the President of the Basotho Action Party (BAP) and its organs, suspended two party members, including a proportional representation MP, pending disciplinary proceedings. The respondents, including constituency executives, initiated motion proceedings in the High Court challenging the suspensions as unconstitutional and seeking interdicts to halt disciplinary hearings. The High Court (Makara J) assumed jurisdiction over the matter notwithstanding a jurisdictional objection, and granted interim interdicts restraining the disciplinary process. The appellants appealed. Held, allowing the appeal— An order by a court assuming jurisdiction or declining it is dispositive of the matter in that court and accordingly final in nature; such an order is appealable without leave under s 16(1)(a) of the Court of Appeal Act 1978. The High Court's assumption of jurisdiction to grant interim interdicts was unjustified. Where the primary reliefs sought pertain to alleged infringements of constitutionally entrenched rights under the the Constitution of Lesotho, Constitutional Division of the High Court under s 22 of the Constitution. Litigation ought not to be bifurcated between courts. Where some reliefs fall within the jurisdiction of the Constitutional Division, the entire matter ought to be heard there to avoid procedural fragmentation. The High Court erred in assuming jurisdiction in the absence of exceptional circumstances. The mere pendency of internal disciplinary processes within a political party does not, without more, justify judicial interference. Courts must respect the autonomy of political parties and refrain from pre-empting internal remedies unless compelling reasons grounded in illegality, mala fides or procedural unfairness exist. The High Court also erred in granting interim reliefs retrospectively when the disciplinary hearings had already concluded prior to the the appropriate forum is issuance of the interdict. The appellants had proceeded with the hearings at their own peril while the matter was sub judice. Accordingly, the appeal was upheld. The High Court's assumption of jurisdiction and consequential orders were set aside. Given the constitutional dimension of the dispute, no order as to costs was made. JUDGMENT CHINHENGO AJA: - Introduction [1] Professor Nqosa Leuta Mahao (‘‘1st appellant’’ or ‘‘Mahao’’) is the Leader and President of Basotho Action Party, a political Party in Lesotho with 6 proportional representation members in Parliament, including Motlatsi Maqelepo (“1st respondent” or “Maqelepo” and Tello Kibane (“2nd respondent or “Kibane”.) Basotho Action Party (BAP) has a Central Executive Committee (‘CEC”), which is its highest decision-making organ in between conferences. [2] In exercise of powers vested in him by a Special National Conference of the Party, Mahao used those powers and authority, with the concurrence of the CEC, to suspend certain members of the Party for indiscipline or insubordination. The of the suspension is that members so suspended would not allowed to attend committee meetings. They would, at the same time, be subjected to disciplinary hearings. Thus, acting as aforesaid, Mahao, for stated reasons, suspended Maqelepo and Kibane from attending Party committee meetings pending finalisation of disciplinary charges levelled against them. Several other members of the Party were, likewise, required to show cause why they should not be suspended also. [3] Maqelepo and Kibane, with purported support of several constituencies of the Party, requested for a Special National Conference which they hoped would resolve disputes within the Party, including the intended suspension of Maqelepo and Kibane. It is averred that Mahao and CEC, would have none of it. Maqelepo, Kibane and two Constituency Executive Committees of the Party, that of Mokhethoaneng No 27 (3rd respondent) and Makhoroana No. 20 (4th respondent) joined forces and commenced proceeding on motion in the High Court seeking certain interim and final reliefs against Mahao as 1st respondent, the CEC of BAP as the 2nd respondent, BAP itself as the 3rd respondent and the BAP Disciplinary Committee as the 4th respondent. Interim and final reliefs sought [4] The interim reliefs sought were that that BAP and the BAP Disciplinary Committee be interdicted and restrained from proceeding with disciplinary hearings against Maqelepo and Kibane, alternatively that the said disciplinary proceedings be stayed until the final reliefs were determined. [5] As final reliefs, they sought declaratory orders that - • Mahao does not have the power under the constitution of BAP to suspend Maqelepo; • the suspension and disciplinary proceedings against Maqelepo are wrongful and unlawful for being inconsistent with the BAP constitution, alternatively that the suspension and disciplinary processes against Maqelepo and Kibane are in violation of the national constitution; • the decision of the BAP National Conference granting power to Mahao to suspend members of the Party is unconstitutional and contrary to the Party constitution; • a circular issued by the Secretary General of BAP (Circular No. 004/2024) is unconstitutional for violating constitutional rights entrenched in the national constitution; • Mahao and the CEC be directed to convene or hold a Special National Conference requested by BAP constituencies as provided in the Party constitution; • Maqelepo and Kibane are entitled to attend, participate and vote at the Special National Conference when convened. • costs on attorney and client scale be awarded against Mahao and others who opposed the application. [6] The final reliefs in bold letters above implicate provisions of the Constitution of Lesotho as opposed to interim and other final reliefs which merely deal with tissues covered by the BAP constitution. Mahao and those sued together with him opposed the application by Maqelepo, Kibane and the two constituencies mentioned above. Before Makara J and grounds of appeal [7] The application came before Makara J. The learned judge issued an interim order on 14 January 2024 by which he declared that the court had jurisdiction to deal with and determine interim reliefs if the exigencies of the matter so demanded even if an objection to its jurisdiction had been raised. Mahao and others had in fact raised the issue that the court had no jurisdiction. The learned judge also granted an interdict against Mahao and BAP Disciplinary Committee from proceeding with disciplinary hearings against Maqelepo and Kibane until the final reliefs which the two had sought, were finalised. It is against the order of the Judge that Mahao, the CEC of the Party, the BAP and BAP Disciplinary Committee are appealing to this Court. [8] The grounds of appeal filed on 15 January 2025 are these: 1. The court a quo erred and misdirected itself that it has jurisdiction to interfere with the internal matters. 2. The court a quo erred and misdirected itself in ruling that it has jurisdiction ignoring the prayers that are purely constitutional under the 1993 Lesotho Constitution. 3. The court a quo erred and misdirected itself in granting interim prayers in the face of a jurisdictional objection where no exceptional circumstances existed, especially where the applicants would have remedies in due course. 4. The court a quo erred and misdirected itself in granting the interim reliefs retrospectively.” [9] Commenting on the grounds of appeal, respondents’ counsel submitted that in so far as ground no.1, “the court a quo did not hold that ‘it had jurisdiction to interfere with internal matters’” because that issue was yet to be determined by the court. Regarding ground no.2 it submitted that it is a mischaracterisation of the court’s finding: the court merely held that “it had jurisdiction to determine interim reliefs even where there was an objection against its jurisdiction.” They submitted that the court was aware that its jurisdiction to grant substantive relief was being challenged and that it was yet to deal with that challenge, and so, it confined itself to the question whether it could grant interim relief despite the challenge to its jurisdiction to grant final relief. Respondents’ counsel also raised the issue that appellants had not sought leave to appeal as required by s 16(1) of the Court of Appeal Act 1978. This contention forms the basis for framing of the issues before this Court by the respondents as I show below. The respondents argue that the orders granted by Makara J are not final nor do they have final effect and for this reason they are not appealable to this Court without leave to appeal having been obtained: the appeal must be struck off the roll. [10] At about the same time that Mahao and co-appellants noted the appeal, they also lodged proceedings on motion against their opponents seeking a stay of Makara J’s order. Those proceedings again came before Makara J on 4 February 2025. He delivered his ruling on the same day, refused to grant a postponement sought by both parties and removed the matter from the roll. That matter, it seems, died there. [11] The order under appeal, as earlier stated, is the one delivered by Makara J on 14 January 2025. It reads- “[61] In the premises, it is ordered that: 1. The jurisdictional challenge fails and, resultantly, it is determined that the Court commands jurisdiction to determine interim reliefs even where there is an objection against its jurisdiction due to the exigencies of the matter. 2. The normal rules of court relating to periods, forms and modes of service are dispensed with on account of the urgency of this matter. 3. 3rd and/or 4th respondents are interdicted and restrained from proceeding with the disciplinary hearing against 1st applicant [Maqelepo] pending finalisation of this matter. 4. 3rd and/or 4th respondents are interdicted and restrained from proceeding with the disciplinary hearing against 2nd applicant [Kibane] pending finalisation of this matter. 5. Costs shall be in the cause.” [12] It must be noted that the wording of paragraph 1 of the above order which appears at the end of the judgment is not the same as paragraph 1 of the order that appears at p. 215 of the record of proceedings. The latter reads: “1. This Court has jurisdiction to determine interim reliefs even where there is objection against its jurisdiction due to the exigencies of the matter.” [13] Makara J’s order, however worded, has given cause for this appeal. Whichever formulation of the order is used, in my view, the point sought to be made by either of them is that the High Court has jurisdiction to issue interim orders depending on the needs of the moment even if it has no jurisdiction to grant final reliefs. Copious heads of argument have been filed by the parties despite that the issues involved are narrow in scope. The appellants’ heads of argument are 22 pages long and those of the respondents are 38 pages long. Condonation for failure to file heads of argument in time and issues on appeal [14] As a prelude to the appeal, the appellants applied, on notice of motion, for condonation of late filing of their heads of argument. That application was not opposed by the respondents. We granted it instantly. [15] There are two issues on appeal so far as the appellants are concerned:– “whether an interim court order can be appealed” and “whether the court a quo has jurisdiction to entertain the matter.”1 In their own way, the respondents summarise the issue on appeal in their heads of argument more elaborately thus: “2.1 The issue this Honourable court is called upon to determine is whether the appeal lies against the orders 1, 2, 3, 4 and 5 granted by the court a quo on 14th January 2025 in terms of section 16(1) of the Court of Appeal Act 1978? 2.2 Put differently, whether such orders are final or have final effect as contemplated by section 16(1) of the Court of Appeal Act 1978. 2.3 Owing to the nearly four-years practice in the High Court which emerged after and was expressly based on 1 Para 2 of appellants heads of argument the Court of Appeal judgment in Ramoepana2, we interrogate the common law position on the competency of the High Court to grant interim relief even where there is an objection to its jurisdiction, then deal with the legal validity of this irregular practice, before focussing on the appealability issue.” [16] There is no significant difference between the parties as to what issue is before this Court for determination. Put simply, it is whether Makara J had the jurisdiction to entertain the respondents’ application. If he did not, his order must be set aside. If he had it, and the appellants were dissatisfied with the outcome could they appeal to this Court with or without leave of Court. It is apposite therefore to quote s 16 of the Court of Appeal Act at this juncture. It provides that - “(1) An appeal shall lie to the Court – (a) from all final judgments of the High Court; (b) by leave of the Court from an interlocutory order, an order made ex parte or an order as to costs only. (2) The right of appeal given under subsection (1) shall apply only to judgments given in the exercise of the original jurisdiction of the High Court.” 2 Director of Public Prosecutions v Ramoepana (C of C (CIV) 49 of 2020 [2021] LSCA25 (14 May 2021) Detailed background to Makara J’s order [17] The last national general election held in October 2022 in Lesotho resulted in the BAP being allocated 6 proportional representation seats in Parliament. These were filled in by the President of the Party, Mahao, the Deputy President of the Party, Maqelelo, Kibane and 3 other members of the Party. When the new Government led by Prime Minister Matekane faced a motion of no confidence and the Government was threatened with a possible collapse, BAP resolved to join the Government and avert a no confidence vote. Perhaps, as a gesture of appreciation or as part of an agreed strategy, Mahao and Maqelelo were appointed Ministers in the Matekane Government. [18] Mahao serve as Minister for a while and was later dismissed from his ministerial post. He and the CEC decided, as a Party, to leave the coalition Government. Maqelelo, Kibane and some BAP members of Parliament resolved to remain in the coalition and support the Government. This, it seems to me, was the real genesis of the squabbles and misunderstandings that arose within the ranks of BAP. [19] The respondents contend that the decision to remain in parliament was for the BAP Parliamentary caucus to make and not for the CEC. Mahao’s camp holds otherwise. The upshot of this was that letters were written to Maqelelo and Kibane to show cause why they should not be suspended and brought before a disciplinary committee and answer for their alleged transgressions. [20] In response to the alleged transgressions, Maqelelo avers that the show cause letter to him was written by Mahao in his capacity as Leader of the Party and not in his capacity as President thereof. Mahao, he says, is only “Leader of the house at National Conference” and that the National Conference has no power to vest in the President the power and authority to suspend a member of CEC unless the BAP constitution has been amended, and such amendment has been registered with the Registrar General and the Independent Electoral Commission (IEC). He avers that in terms of the BAP constitution a member of the Party may only be subjected to disciplinary proceedings for violation of the Party’s constitution, rules, standing orders and code of conduct. He avers further that these instruments may not be used to stifle debate or deny members of the Party their democratic rights. In any event, he says, the BAP has not put in place the rules, standing orders and code of conduct as contemplated by the Party constitution, which would provide a basis for any allegation of misconduct against a member. In his founding affidavit Maqelelo gives details of the allegations against him and others who received show cause letters, including the alleged disregard of Circular No.004/204 on which another allegation of misconduct against him is founded. Maqelelo also blames Mahao and the ECE for refusing to convene a Special National Conference which would address the differences that emerged between the factions in the Party. [21] It suffices for present purposes to state that serious differences have emerged in the Party and those differences resulted in Mahao sending show cause letters to the first two respondents. It also suffices to state that Mahao and the ECE dispute the allegations made against them in Maqelelo’s founding affidavit and the positions Maqelelo and his faction have taken on various points of difference. There is no need to go into detail on all the points of disagreement for purposes of the present appeal. It is perhaps only necessary to advert to Maqelelo’s show cause letter if simply to indicate what offences he is alleged to have committed. The show cause letter to him is dated 29 November 2024 and was authored by Mahao as Leader of BAP. It reads– “The Central Executive Committee of the Basotho Action Party at its meeting of the 27th November 2024 noted transgressions against the BAP Constitution allegedly committed by you, which I list below. (1) That on or around 10th October 2024 you were a party to a letter written to Mr Ntsokoane Matekane, the Prime Minister of Lesotho and Leader of RFP, requesting him to take unspecified hostile actions against BAP CEC and the BAP Leader in the performance of their constitutional roles. You did so without the authority of the BAP and with intention to harm its interests and in collaboration with parties hostile to the BAP, in violation of the provisions of BAP constitution. (2) That on or around the 24th November 2024 you organised or participated in a meeting of Berea District BAP constituencies hosted contrary to Circular No. 004/2024 issued by the Secretary General on behalf of the CEC. Further, in organising or participating in the said meeting, you defied a warning issued on the 23rd November 2024 by the Secretary General advising about the irregularity of the said meeting. In light of these serious charges, I, as BAP Leader vested by Conference with powers of suspension of CEC members, of whom as Deputy Leader you are, I intend to invoke these powers to suspend you from BAP Committees pending the disciplinary charges and hearing against you. Further, in light of the aforementioned, show cause why I may not suspend you. Your written response must reach me before seven(7) days of receiving this letter. Yours in the struggle for the Rule of Law and Good Governance.” [22] A similar letter was sent to Kibane on 28 November 2024, the main charge therein being that he was party to the letter written to the Prime Minister requesting him to take unspecified hostile action against BAP CEC and the BAP Leader. [23] Maqelepo and Kibane dispute the allegations against them, needless to say. Maqelelo for instance authored a long response to the show cause letter refuting the allegations against him and explaining the position that he and those in the BAP Parliamentary caucus had taken. There was quite an exchange of letters between the parties, details of which are unnecessary to set out for purposes of this appeal. Proceedings in High Court [24] The respondents commenced proceedings against the appellants on or about 13 December 2024 in the High Court seeking the reliefs already mentioned. Mahao filed an answering affidavit in which he raised two points in limine and addressed the merits of the matter as well. The two points in limine are on jurisdiction and lack of urgency. The latter is now water under the bridge and need not detain this Court. It is the objection to the jurisdiction of the High Court that has resulted in this appeal. It is well worth recording verbatim the challenge to the court’s jurisdiction is as framed by the appellants: “3.1.1 The respondents [appellants herein] submit that this honourable court has no jurisdiction to entertain this application in which it is being called upon to interfere with unterminated disciplinary proceedings against 1st and 2nd applicants [respondents in this appeal]. The suspension letter served upon the 1st applicant is clear that the said suspension is an interim measure pending the conclusion of the on-going disciplinary process. The invitation for the Court’s intervention is at this state premature. 3.1.2 Furthermore, it is submitted on behalf of the respondents that this Honourable Court has no jurisdiction to the extent that the applicants claim pure constitutional reliefs. Under paragraphs 3.3 and 3.4 of the Founding Affidavit, read together with Prayers 10 and 12 in the Notice of Motion, the applicants clearly seek to protect constitutionally ‘entrenched’ rights under the Lesotho 1993 Constitution, and this they seek to protect in the wrong court. They should have pursued these claims before the Constitutional Division of the High Court, following the set procedure applicable in that court. Having failed to so do, this court cannot be called upon to intervene. 3.1.3 The rest of the allegations and contentions against the discipline of the 1st and 2nd applicants must be made not in court but at that same disciplinary forum.” [25] The objection to jurisdiction is amplified at paragraph 3.3 of the Answering affidavit under the heading “Untenable Prayers”, where Mahao avers- “3.3.1 I submit that the nature of the prayers 3, 4 and 5 is to seek this Honourable Court to shield the 1st and 2nd applicants from attending a disciplinary hearing where their side of the story relating to the charges will be heard. These prayers are bad in law and no court can grant them, even in the interim. Courts cannot be called upon to micromanage the affairs of political parties and internal disciplinary platforms thereof. These prayers must be refused.” [26] Mahao is supported by the Deputy Chairperson and the Secretary General of BAP, who both filed supporting affidavits. Court’s lack of jurisdiction - submissions [27] In the main heads of argument, appellants address four issues, namely, the appealability of an interim order; whether court has power to intervene in internal processes of a political party; whether in light of reliefs obtainable in Constitutional Division of the High Court, the High Court in exercise of its original jurisdiction was entitled to entertain the matter; and whether there were any exceptional circumstances warranting the intervention of the High Court in the face of a jurisdictional objection in circumstances where applicants would have remedies in due course. I use this itemisation of issues in considering the respondents’ submissions together with those of the appellants, in one fell swoop. Appealability of interim orders [28] The appellants concede that, generally, there is no appeal against an interim order and submit further that such an order may be appealed if it has final effect but with leave of court having been obtained.3 In case I may be faulted for misrepresenting the appellants’ submission, I quote what they say verbatim: “3.1.1 Generally, an interim court order will not be appealed against. However, and with the leave of Court, an interim order which has final effect can be appealed against. 3.1.2 In the High Court, the Hon. Judge a quo granted an interim court order which dismissed the point in limine of jurisdiction and granted interim reliefs sought by the applicants. The appellants submit that such an assumption of jurisdiction by the High Court is final and stands to be appealed.” [29] The appellants do not sufficiently develop the submission that leave to appeal must be obtained even where the order has final effect. They submit that in this case the High Court having assumed jurisdiction against protestation by appellants, the order granted in consequence thereof, and in relation to jurisdiction, is final and therefore appealable. The respondents contend that the orders granted by the court a quo are not final, nor do they have final effect and are therefore not appealable in terms of s 16 (1) of the Court of Appeal Act, and further that in the absence of leave of court this court does not have jurisdiction to determine the appeal and the matter must be struck off the roll. 3 See para 3.1.1 of appellant’s main heads of argument [30] In further support of their argument that the High Court has jurisdiction to grant interim reliefs pending determination of the question whether it has jurisdiction to determine the substantive or final reliefs sought, they rely on National Gambling Board v Premier, Kwazulu-Natal4. They quote that case as stating that “at common law, a court’s jurisdiction to entertain an application for an interim relief depends on whether it has jurisdiction to preserve or restore the status quo. It does not depend on whether it has the jurisdiction to decide the main dispute.” As further authority they also refer to Airoadexpress (Pty) Ltd v Chairman, Local road Transportation Board, Durban5 to the effect that the High Court as a superior court of record has the general and inherent power to grant interim relief pendente lite to avoid injustice or hardship on the part of an applicant, “a salutary power which should be jealously preserved and even extended where exceptional circumstances are present and where but for the exercise of such power a litigant would be remediless.” [31] The High Court indeed determined that it had jurisdiction to grant interim relief and proceeded to do so. That decision is final and, in my view, appealable without leave of court. Had the court declined jurisdiction, such decision would similarly have been final in nature and also appealable without leave of court. There is no need to deal with much of the erudite submissions particularly by respondents’ counsel which deal at great length with how the decision in Director of Public Prosecutions v Ramoepana6 has, in 4 2002 (2) SA 715 (CC), para [49] 5 1986(2) SA 663 (A) 6 (C of A (CIV) 49 of 2020) [2021] LSCA 25 (14 May 2021) respondents’ opinion, been misunderstood or misapplied over the last three years or so. [32] Jurisdiction, when either assumed or declined by a court, is dispositive of the matter in the court concerned and the decision either way may be appealed without leave as it is final in nature. To this extent the appeal is therefore properly before this Court. I must deal a little more with the respondents’ contentions at this point in order to have a comprehensive and clearer appreciation of the parties positions. Respondents contentions on propriety of interdictory relief [33] The respondents sought, as already stated, interdicts and stay of the disciplinary proceedings because they contend, as part of the final relief, that Mahao has no power to suspend and or to subject Maqelelo to disciplinary proceedings; the suspension and disciplinary processes against Maqelelo and Kibane violate their constitutional rights entrenched in the Lesotho Constitution; the vesting of power on Mahao to suspend members of BAP violate the BAP constitution; the Secretary General’s Circular No. 004/2024 is unconstitutional because it violates the respondents’ rights under the Lesotho Constitution; and Mahao and CEC should be compelled to convene a Special National Conference at which the 1st and 2nd respondents should attend and be permitted to participate in the deliberations. Whether Court has power to intervene in internal matters of a political party [35] The appellants argue that a court should not assume jurisdiction in on-going political processes of a political party as to do so opens the door for politicians to “hide behind the courts in an endeavour not to answer to their political sins.” There can be no doubt, so they argue, that a member of a political Party has a contractual relationship with his or her Party and is taken to have intended their legal relationship to be governed by the terms of their contract. It cannot be gainsaid that a political Party may subject any of its members to disciplinary proceedings provided due process is followed – Kose Makoa v Alliance for Democrats and 3 Ors7, but that cannot be all there is to it. There may be grounds, as alleged in this case, for a member of a political party to resist or object to being subjected to a disciplinary process. If a sound case is made for the court to intervene then it may intervene without violating the general principle stated in Walhaus v Additional Magistrate, Johannesburg8 that courts should generally not pre- empt decisions of quasi-judicial bodies through premature intervention but should allow internal processes to run their course. [36] The reliefs sought by the respondents in terms of prayers 3 - 5 of the notice of motion would be such as a court should not ordinarily interfere with or prohibit because, without further 7 C of A (CIV) 41/2022 (11 November 2022) at para 8 8 1959(3) SA113 (AD) amplification, they seek to interdict or restrain the Party from conducting disciplinary proceedings against its members. But where good reasons are given why an interdict or restraint should be decreed, it is a function of the court to consider those reasons and determine whether the interdict is warranted or not. This brings us to the real issue in this appeal. Whether matter could be bifurcated [37] The final reliefs sought by the respondents which are founded or based on provisions of the Constitution of Lesotho are issues for the Constitutional Division of the High Court. The other final reliefs are determinable by the High Court in exercise of its ordinary jurisdiction. The question arises as to which court should the respondents’ application have been taken. The appellants contend that because two purely constitutional issues are raised, the respondents should have lodged the application in the Constitutional Court. This in substance is an assertion that the High Court, qua High Court, had no jurisdiction to entertain the application. In this regard they refer to s 22 of the Constitution and the decision in Democratic Congress v Independent Electoral Commission9 in which the Chief Justice categorically stated that remedies for violation of rights or non-compliance with the Constitution fall within the exclusive jurisdiction of the Constitutional Court. [38] In my view litigation or a case may not be bifurcated, with portion of it in one court and another portion in another court. The 9 Constitutional Case No.10 of 2022 proper and obviously convenient approach is to take the matter to a court that enjoys jurisdiction in respect of all issues in the case. In the matter at hand, to avoid the bifurcation of the proceedings, the respondents should have taken their application to the Constitutional Court which could deal not only with the reliefs peculiarly for it to determine but also with those reliefs which the High Court could well have dealt with. In the circumstances of this case, the High Court should have declined jurisdiction in deference to the Constitutional Court, which as a Division of the High Court could exercise jurisdiction in respect of all the reliefs sought, whether interim or final. Whether exceptional circumstances existed to justify assumption of jurisdiction by High Court. [39] The appellants submit that the High Court assumed jurisdiction and granted interim relief in the face of an objection to its jurisdiction because it was of the view that exceptional circumstances existed justifying the course it adopted. Appellants contend that no such exceptional circumstances existed nor were demonstrated unlike in Letsie-Rabotsoa v Principal Secretary, Ministry of Communications and Technology10 where the proceedings were patently irregular as found by the judge or Korokoro Constituency Committee v Executive Working Committee – All Basotho Convention11 in which the court said interference may be justified where there is evidence of mala fides, irregularity or non-compliance with laid down procedures. Appellants argue that 10 [2021] LSHC 28 11 C of a (CIV) (10 of 2019) LSCA 3 (1 February 2019) at para 54 the so-called exceptional circumstances mentioned by the respondents were speculative in character, such as that the outcome of the disciplinary proceedings would result in their suspension or expulsion from the Party when it was possible that they could be acquitted of any wrongdoing or they could receive lesser penalties, such as fines or warnings. There being no exceptional circumstances the High Court was not entitled to assume jurisdiction in this matter. Grant of interim reliefs retrospectively [39] The last point made by the appellants is that the High Court “granted the interim reliefs retrospectively.” Their explanation is this: “It is the appellants’ case that when the interim court order was granted on the 14th day of January 2025, disciplinary proceedings were already concluded on the 22nd December 2024 for the 2nd respondent and on the 2nd January 2025 for the 1st respondent, which is clearly prior to the granting of the said order. The outcomes of the proceedings were that the 1st and 2nd respondents herein are suspended form the Party (BAP) for 7 years and 5 years respectively. This being the case, it is evident that the interim court orders were granted retrospectively, and the law does not allow this.” [40] The respondents however submit that the court’s attention was drawn to the fact that the disciplinary proceedings had been completed by the time the court was to make its order. The judge took no cognisance of it as to him the conduct of the appellants was in violation of the sub judice rule. To me, it does not seem to matter that the order was made after the disciplinary proceedings were completed. The matter was before the court as from the date that the appellants were served with the application seeking interdictory relief. This was around 13 December 2024. The appellants took the risk and proceeded with the disciplinary process without regard to the fact that all their work could be undone by the court, which in the event is what happened. They only would have themselves to blame for not exercising caution and awaiting the outcome of a legal process that had commenced before they continued with and completed the disciplinary hearings. Disposition [41] The conclusion I have reached that the High Court in exercise of its ordinary jurisdiction had no competency to determine alleged violations of provisions of the Constitution of Lesotho; that that court’s assumption of jurisdiction was not necessitated by any exceptional circumstances and that the appellant could appeal to this Court without having to seek leave to appeal because the High Court order was final in nature, the result can only be that Makara J’s court had no jurisdiction to deal with the respondents’ application and his order must be set aside. [42] Consequently, (a) The Appeal succeeds and the order granted by the High Court on 14 January 2025 is set aside. (b) No order as to costs is made, this being essentially a constitutional dispute. ______________________________ MH CHINHENGO ACTING JUSTICE OF APPEAL _____________________________ P MUSONDA ACTING JUSTICE OF APPEAL I agree I agree ________________________________ J W VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR 1ST APPELLANT: T MAQAKACHANE FOR 1ST RESPONDENT: L TUKE 28