Makharilele & Others v National Executive Committee of The Lesotho Congress for Democracy (LCD) & Others (CIV/APN/ 82 of 2001) [2001] LSCA 66 (3 August 2001)

IN T HE H I GH C O U RT OF L E S O T HO In the matter between: Mabusetsa Makharilele Mafereka Tsukulu Motlatsi Mokebe Makalo Lenka Motamolane Matiea and CIV/APN/82/2001 First Applicant Second Applicant Third Applicant Fourth Applicant Fifth Applicant National Executive Committee of The Lesotho Congress for Democracy (LCD) National Conference (LCD) Lesao Lehohla Lesotho Congress for Democracy (LCD) Motlohi Moeno First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent J U D G M E NT Delivered by the Honourable Mr. Justice M. M. Ramodibedi on the 3rd day of August 2001 The political intolerance that has dogged political parties for so long in this country has once again reared its ugly head. What is essentially a domestic affair that should be resolved internally has again been brought before the Court for determination simply due to mistrust and lack of political tolerance. Often when the courts do reluctantly intervene they are immediately and contemptuously turned into scapegoats and so the war of attrition continues unabated. At the root of this unholy war lies endless power struggles in which people jostle for positions in the management of political parties which in turn obviously provides access to funds and even fat allowances. Indeed as it is generally accepted that Lesotho is one of the poorest countries in the world the scenario described in the preceding paragraph is, I regret to observe, unlikely to disappear in the near future. Because of lack of jobs and the high rate of unemployment in the country it obviously pays to be in the management of political parties and hopefully to become a member of Parliament or, with more lack, a Minister as a means of earning a living. In the bitter political struggles described above one readily calls to mind such cases as Tseliso Makhakhe and 13 others v Molapo Ohobela and 22 others CIV/APN/205/99 the appeal of which was withdrawn before the Court of Appeal in Molapo Ohobela and others v Tseliso Makhakhe and others - C of A (CIV) No. 14 of 1999: Tseliso Makhakhe and others v Molapo Qhobela and others CIV/APN/410/1999 which was again confirmed by the Court of Appeal in Molapo Qhobela and Another v B CP and Another 1999-2000 L LR and Legal Bulletin 243; Lesao Lehohla v National Executive Committee of the Lesotho Congress for Democracy and 4 others CIV/APN/160/98 which was confirmed by the Court of Appeal in L CD and others v Lesao Lehohla 1999-2000 LLR and Legal Bulletin 41. The present litigation must no doubt be seen against the background outlined above. There can be no other motive, in my respectful view, for this seemingly senseless litigation which can only be to the detriment of the party itself. I turn then to the salient facts of the case. On the weekend of the 26th January 2001 the Lesotho Congress for Democracy (hereinafter referred to as the 4th Respondent) held an annual general conference in terms of its constitution. One of the business of the conference was an election of members of the National Executive Committee (NEC) of the party which duly commenced on Sunday the 28th January and was concluded on Monday the 29th January 2001. It is common cause that the leader of the party namely The Honourable the Prime Minister Mr. Pakahtha Mosisili retained his position by virtue of the fact that his term had not yet expired at that stage and his re-election was not due. It is further common cause that the following thirteen (13) people were elected at the conference namely:- (1) Hon. K. A. Maope -Deputy Leader (2) Hon. Thebe Motebang -National Chairman (3) Hon. Lesao Lehohla -Deputy Chairman (4) Hon. S. E. Motanyane -Secretary General (5) Hon. Motlohi Moeno -Deputy Secretary General (6) Hon. Pashu Mochesane -Propagandist (7) Hon. Tseliso Mohloki -Deputy Propagandist (8) Hon. Leketekete V. Ketso -Treasurer (9) Hon. Liau Nooe -Newspaper Editor (10) Hon. Sello Machakela -Committee Member (11) Hon. Thabiso Melato -Committee Member (12) Mrs. Matseliso Monyakane -Committee Member (13) Hon.'Nyane Mphafi -Committee Member. It also requires to be mentioned (and this is further common cause) that two more committee members are automatic members of the N EC of the 4th Respondent for 2001. They are Mrs. Maleshoane Motsamai who represents the L CD W o m en League and Mr. Matooane Mokhosi who in turn represents the L CD Youth League. As is now typical of political parties in this country some members of the outgoing national executive committee of the 4th Respondent stonewalled and simply refused to hand over to the incoming executive committee citing, it would seem, irregularities at the election in question. This impasse resulted in the Applicants launching the present application on the 20th February 2001 for prayers couched in the following terms:- "1. Dispensing with the rules of this Honourable Court pertaining to periods and modes of services on account of urgency. 2. A Rule Nisi be and is hereby issued returnable on the date and time to be determined by this Honourable Court calling upon Respondents to show cause, (if any) why; (a) The proposed hand over by 4th Respondent's, 2000 National Executive Committee to 4th Respondent's 2001 National Executive committee shall (sic) be stayed pending finalisation hereof. (b) The outcome of the 2nd Respondent's elections of the IEC (sic) of the 4th respondent on the 28th day of January 2001 shall not be declared null and void. (c) The Fourth Respondent shall not be directed to conduct new elections in the event that this Honourable Court declares the outcome of the elections to have been null and void. (d) The continuation of Fourth Respondent's conference beyond 28th January, 2001 shall not be declared of (sic) unconstitutional and unlawful. (e) The elections that continued beyond Sunday 28 January, 2001 shall not be declared null and void. (f) The participation of 3rd Respondent in Fourth Respondent's Conference of 26 - 28 January, 2001 shall not be declared unconstitutional. (g) The election of 3rd Respondent by the Fourth Respondent's Annual Conference of 26 - 28 January, 2001 shall not be declared null and void. 2. That prayers 1 & 2 (a) operate with immediate effect as interim court order. 3. Costs in the event of opposition. 4. Further and/or alternative relief." When the matter was argued before me yesterday the 2nd August 2001 Mr. Pretorius SC for the Applicants submitted that the 1st Applicant should be declared to have been validly elected. When it was pointed to him however that in terms of prayer 2(c) of the Notice of Motion the application sought new elections altogether he made an application from the bar for an amendment to include a prayer invalidating the election of 5th Respondent and declaring valid the election of the 1st Applicant. There being no opposition by Mr. Kennedy SC for the Respondents this application for amendment was granted. I observe however that since there was no application to delete prayer 2(d) calling for fresh elections one has an untenable bizarre situation whereby two prayers which are mutually destructive now stand side by side. This being an application for a declaratory order I have taken this factor into account in disposing of this matter. It requires to be mentioned that the Respondents have themselves filed a counter application for relief in the following terms:- "1. Declaring that the following members of the National Executive Committee of the Lesotho Congress for Democracy, as announced by the Elections Committee of the L CD at the annual general conference thereof on the 29th January 2001, were properly and validly elected as such: 1.1 Leader: Pakalitha Mosisili 1.2 Deputy Leader: Kelebone Maope 1.3 National Chairman: Thebe Motebang 1.4 Deputy Chairman: Lesao Lehohla 1.5 General Secretary: Sephiri Motanyane 1.6 Deputy Secretary: Motlohi Moeno 1.7 Publicity Secretary: Pasu Mochesane 1.8 Deputy Publicity Secretary: Tseliso Mohloki 1.9 Treasurer: Leketekete Ketso 1.10 Newspaper editor: Liau Nooe 1.11 Other committee members: Sello Machakela; Thabiso Melato; Matseliso Monyakane; 'Nyane Mphafi. 2. Declaring that the Applicants in the main application have, since the election of the new National Executive Committee members as referred to in prayer 1 above, ceased to have any status as National Executive Committee members of the Lesotho Congress for Democracy. 3. Interdicting the Applicants from obstructing, hindering or interfering with the conduct of the affairs of the National Executive Committee of the Lesotho Congress for Democracy by its new Committee members as referred to in prayer 1 hereof, and directing the Applicants to take all reasonable steps to ensure the smooth handing over of the affairs of the previous National Executive Committee to the new Committee members as aforesaid. 4. Ordering the Applicants (jointly and severally, the one paying the other to be absolved) to pay the costs of this counter application. 5. Granting further or alternative relief." In my view, four issues immediately arise in so far as Applicants' case is concerned namely (a) whether or not the applicants are guilty of non-joinder, (b) whether the applicants have locus standi in judicio, (c) whether there is a genuine dispute of fact and (d) whether the case is a proper one for the court's intervention or whether the matter must be left for resolution by the internal organs of the party itself. (a) Non-Joinder At the outset it requires to be stated that an application for a declaratory order as in the instant case is discretionary. The court must however exercise its discretion judicially and not capriciously or upon an improper motive. This court takes a dim view of the fact that interested people such as all those elected into 4th Respondent's national executive committee at the conference of January 2001 have not been joined as respondents yet the Applicants seek to nullify their election. It seems to me beyond question therefore that all those people stand to suffer irreparable prejudice should the court accede to the Applicants' prayers in these circumstances. In this regard the law, as I have always perceived it to be, is that a party who has a direct and substantial interest in any order the Court might make in proceedings or if such order could not be sustained and carried into effect without prejudicing his interest is a necessary party and should be joined in the proceedings. See Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 661. In Basotho Congress Party and Others v Director of Elections and Others 1999-2000 LLR and Legal Bulletin 518 at 531 the Court of Appeal expressed itself as follows:- "In the first place appellants were not the only parties involved in the election. It is inconceivable that a court could have considered postponing the election without at least involving the other parties in these proceedings and giving them an opportunity to be heard. The appellants should have been non-suited on this ground alone." I discern the need to mero motu adopt the approach of the Court of Appeal set out above and accordingly hold that the Applicants are non- suited on this ground alone. I should mention that Mr. Kennedy SC for the Respondents did not rely on non joinder in view of the fact that his clients have counter claimed in the matter. That however is as far as the counter claim is concerned. Significantly the counter application is made by the five Respondents only and is not made by all those who were elected at the January 2001 conference. The fact of the matter is that the main application by Applicants is itself merely directed against the five respondents reflected therein. The order sought would not only be carried into effect as against those respondents but would also be prejudicial as against people who are not reflected in the Notice of Motion. No application was made to amend the Notice of Motion so as to include all the people who were elected at the conference in question including the other three who are automatic members of the N EC by virtue of their respective portfolios in the party. (b) Locus Standi As I see it the point of locus standi in this matter is very short and will not bear any elaboration. Apart from the First Applicant Mabusetsa Makharilele all the other four Applicants have failed to allege and set out facts disclosing their locus standi in the matter. Nowhere is it shown in the affidavits that they would themselves have been elected but for the alleged irregularity. They simply "confirm" the contents of Mabusetsa Makharilele's (First Applicant's) founding affidavit which in turn does not deal with their positions except to say that they participated in the said National Conference of the L CD without more. Nowhere is it alleged that they stood as candidates and how many votes they polled if any or what prejudice they stand to suffer. I have no hesitation therefore in holding that these Applicants have failed to establish locus standi. Their case also falls to be dismissed on this ground alone. (c) Dispute of fact The case for the First Applicant stands on a different footing from that of the other Applicants. He avers that through a mix-up of ballot boxes his ballots were misplaced in other boxes other than the one he was contesting for (Deputy General Secretary). As a result 6 of his ballots were not counted in his favour. He avers therefore that if these 6 ballots had been included in his tally he would have won against his counterpart Motlohi Moeno (The Fifth Respondent) by one (1) vote. So far so good. The Respondents' version on this issue however is that corrections were duly made in so far as the ballots relating to the positions of General Secretary and Deputy General Secretary were concerned but that if the 6 ballots which the First Applicant is complaining about were subsequently found in unrelated ballot boxes to those of General Secretary and Deputy General Secretary (significantly after the result had already been published) as First Applicant maintained then such ballots "amounted to spoilt ballots" in terms of a procedure adopted by the Elections Committee. There was no justification or "acceptable reason why there should have been such an error." Significantly it is Respondents' version that the procedure relating to spoilt ballots was adopted by the Elections Committee "in the exercise of its discretion and approved and accepted by the National Executive Committee members who were present as well as the entire conference" (emphasis added). Incidentally I observe that in terms of Section 9 (b) of the 4th Respondent's constitution all decisions or resolutions made by the general conference of the party are binding on all the party members, committees, branches and associations attached to the party. That this must indeed be so, in view of the fact that the 4th Respondent is an association, is borne out by such cases as Jocky Club of South Africa v Forbes 1993 (1) SA 649 (A) at 654. It requires to be mentioned at this stage that very late in the day and at the replying stage Mr. Pretorius SC for the applicants half-heartedly made an application from the bar to refer the dispute of facts as outlined above to oral evidence. I use the term "half-heartedly" advisedly as it became clear to me during Mr. Pretorius' submission that he was not equivocal and was himself uncertain about whether an application for referral to oral evidence was the correct step in the circumstances of the case. He was ultimately heard to say that the application was made in the alternative and that his "principal" submission was that the disputes of fact were irrelevant and that the matter could be disposed of on the Applicants' version. In Di M eo v Capri Restaurant 1961(4) S A 614 (N) it was held that an application for referral to oral evidence should be made in unequivocal terms and should not be made conditional upon the Court coming to the conclusion, after hearing and considering argument in the whole case, that the conflict cannot be resolved without hearing evidence. In my judgment the Court has a discretion to be exercised judicially whether or not to grant an application for referral to oral evidence at any stage before judgment. Each case must however depend on its own particular circumstances. I have taken the timing for the application for referral to oral evidence in a bad light. The Respondents' opposing affidavits were served on the Applicants' attorneys as long ago as the 23rd April 2001 judging by the acknowledgment stamps on the Respondents' papers. It must have been clear to the Applicants at that stage that there were disputes of fact and yet they did nothing about it until they heard the strength of the Respondents' case in argument before me. The application is made from the bar without notice and without supporting affidavits. There is no explanation furnished why the Court is treated in this cavalier manner. Referral to oral evidence would no doubt further prolong the matter and would as such no doubt be prejudicial to the parties. At any rate the application for referral to oral evidence is opposed by Mr. Kennedy SC on behalf of the Respondents. All things being considered I have no doubt that it would work an injustice to refer the matter for oral evidence at this stage or at all and I accordingly dismiss the application with costs. To the extent that there is a dispute of fact on the issue of the so called First Applicant's six (6) ballots and to the extent that the Applicants seek final relief in motion proceedings it follows in my judgment that the Respondents' version must be accepted on the authority of Plascon Evants Paints v Van Riebeeck Paints (Pty) Ltd. 1984 (3) S. A. 623 (A) at 634-635. It follows in my view therefore that First Applicant's case further falls to be dismissed on the ground that he is relying on "spoilt ballots" which are clearly invalid and of no force and effect. Incidentally this is the meaning ascribed to the words "spoilt ballots11 by the Concise Oxford Dictionary. As the supreme body of the 4th Respondent party the national conference was fully entitled to make this resolution as it apparently did on the version of the Respondents. Even if I may be wrong on the view that I take of the matter I would at any rate in terms of Rule 8(14) of the High Court Rules 1980 dismiss the applicants' application on the ground that there are disputes of fact which they should have anticipated and that it was improper for them to proceed by way of motion proceedings. (d) Whether the case is a proper one for the court's intervention A declaration of rights in terms of Section 2 (1) (c) of the High Court Act 1978 is a matter within the discretion of the Court. As I have stated previously, however, this is a judicial discretion which cannot be exercised arbitrarily or for a wrong purpose. It is a discretion that must be exercised after due consideration of relevant factors. In this regard it is pertinent to bear in mind that the question whether or not a declaratory order should be made under this section has to be determined in two stages namely: 9.1 the Court must be satisfied on jurisdictional facts that the applicant is a person interested in an "existing future or contingent right or obligation" and if so satisfied, 9.2 the Court must decide whether the case is a proper one for the exercise of the discretion conferred on it. See Durban City Council v Association of Building Societies 1942AD 27 at 32: Lawrence Motlhokoa v St. Patrick's High School Managing Board & 7 Others CIV/APN/17/98 (To be reported in 1999 - 2000 LLR). Apart from the case for the First Applicant which I have dealt with above the rest of the Applicants have failed to establish the jurisdictional facts alluded to in (a) above. They have failed to make even a token case to show that they are interested in an existing future or contingent right or obligation. In this regard I respectfully agree with the remarks of Watermeyer JA in Durban City Council v Association of Building Societies (supra) that the interest of an applicant must be a real one, not merely abstract or intellectual interest. Worse still the Applicants have not shown that they would have been elected into 4th Respondent's N EC but for any alleged irregularities. They simply pin their mast to the First Applicant's case and yet the latter does not advance their case an iota. All things being considered therefore I have no hesitation in finding that the Applicants have failed to establish their locus standi in the matter. By the same token I find that this is not a proper case for the Court's intervention. There is another reason for holding this view. It is that all the Applicants clearly have an alternative domestic remedy which they have not exhausted namely to resort to the 4th Respondent's N EC or to the party conference. There is for that matter no evidence that the Applicants have ever resorted to the party leader himself for a resolution of the matter before rushing to court as they have done. Mr. Pretorius SC submits on behalf of the Applicants that there was a dead lock and that the Court had to resolve the question as to which is the lawful N EC before one could resort to local remedies. I do not agree. Inherent in this submission is an insinuation that the 2001 N EC is unlawful and yet as I read the papers nowhere is the election of all the members thereof seriously challenged except that of the 5th Respondent. I cannot then understand why the Applicants would not feel free to exhaust their remedies before that NEC. There is no evidence that they approached the 2000NEC for that matter or that they called for a special conference of the 4th Respondent party to address the issue. In Jonker v Ackerman en. Andere 1979 (31 SA 575 (O) the court held, inter alia, that the mere non-compliance with the provisions of the constitution of a voluntary association is ordinarily not sufficient for a court to intervene in the proceedings of such an association and that it is necessary for a person who is allegedly aggrieved to show that he has been prejudiced. While there can be no perfect election anywhere in the world what has happened in my judgment is that the 4th Respondent's conference has expressed its desire to be run by the members that it elected. This Court should and does decline from interfering with the exercise of a democratic right by the conference to choose their own leaders. Such right is entrenched in terms of Section 16 of the Constitution of Lesotho which guarantees freedom of association. It must be emphasised that the 4th Respondent's conference is the supreme body in the party structure and as such its decision must always be given effect to. In view of the conclusion which I have reached in this matter it is strictly unnecessary to deal with all the issues raised by Mr. Pretorius SO in seeking to overturn the election of the 2001 N EC by the 4th Respondent's conference. In passing, for example, he submits that the conference went beyond the stipulated time and that therefore the election of the 2001 N EC is invalid for this reason. With respect this argument is flawed for various reasons. I point only to the fact that as the supreme body the 4th Respondent's conference has the power to decide on any extension of time to complete its business once such has been commenced with and as has previously been stated its decision binds all the members. It certainly made practical sense to complete the business of the conference rather than postpone it with all the consequent inconvenience and expense to the delegates. In any event it has not been shown that it was calculated to prejudice anybody. It is significant in this regard that strictly speaking only the 5th Respondent's election is being challenged. It is pertinent to note that this Court had occasion to deal with and duly rejected a similar argument as the one raised in the preceding paragraphs in Tseliso Makhakhe & 13 others v Molapo Qhobela & 22 others (supra) (citing John v Rees 1969 (2) A LL ER 274). I have no doubt in my mind that by seeking to nullify the entire. elections of members of the N EC 2001 the Applicants are being unrealistic and indeed unreasonable to the extreme. They simply ignore the inconvenience and great expense involved in reconvening another "annual general conference" of the party let alone the question of delay and prejudice. The unreasonableness of Applicants' application can best be tested by the fact that while they have effectively withdrawn their objection to the 3rd Respondent's election into the N EC for 2001 thus they nevertheless persist in seeking to nullify even his own election. All things being considered I have come to the conclusion that this is not a proper case for a declaration of rights sought by the Applicants. In the result the Applicants' application is dismissed with costs. I turn then to the Respondents' counter application. The Respondents' Counter application The full terms of the prayers sought for in the Respondents' counter claim have been set out above. Suffice it to say that in a nutshell the Respondents are basically seeking a declaratory order to the effect that the members of the 4th Respondent's N EC for 2001 were properly and validly elected as members of the National Executive Committee of the Lesotho Congress for Democracy (4th Respondent) at the annual general conference of the party on the 29th January 2001. They further seek an order interdicting the Applicants from obstructing, hindering or interfering with the conduct of the affairs of the National Executive Committee of the 4th Respondent. As I see it, it is not seriously disputed that the 4th Respondent conference elected a new N EC for 2001 the members of which are fully shown above. In this regard I accept the uncontroverted version of the Respondents that initially the Applicants did not even raise "any objection to the legal validity of the election of the new committee." That was at the stage when the new committee insisted on a handing over by the outgoing committee of 2000. It is not disputed and 1 accordingly accept the Respondent's version (see paragraph 30 of the affidavit of Lesao Lehohla) that at the first hand over meeting between the new committee and the outgoing committee "the outgoing committee members indicated that they were not ready with notes and reports which they wished to hand over." He adds that the new committee members then "took them (members of the outgoing committee) at their word and agreed to postpone the meeting for the purpose of handing over" (my underlining). There was no mention at that stage of any challenge to the validity of the election of the N EC for 2001. It must further be recorded and again this is not disputed that several attempts to force the outgoing committee to hand over power aborted but instead the Applicants launched this application which was then used as an excuse for not effecting the hand over sought. This, despite the fact that Guni J had refused the Applicants' prayer for an interim order preventing the handing over and had ruled that there was no prejudice that the Applicants would suffer if they proceeded in the normal way. Indeed this judgment would not be complete if I did not quote the uncontroverted paragraphs 36 and 37 of Lesao Lehohla's affidavit on behalf of the Respondents. He avers as follows: "36. The outgoing Committee members and in particular the Applicants are accordingly refusing to hand over to the new Committee, notwithstanding the fact that their term of office has expired and they have been replaced with a new duly elected National Executive Committee, democratically elected and accepted by the party conference. 37. The failure to hand over by the outgoing Committee is causing serious disruption to the operation of the party and the conduct of its affairs. It is effectively paralysing the proper administration of the party's affairs in that the new Committee (sic) are unable to discharge their duties and conduct the affairs of the party. It is respectfully submitted that there is no lawful basis for the Applicants' conduct, that there is no basis to (sic) the relief claimed by the Applicants in their application, and that instead appropriate relief should be ordered to declare and confirm the validity of the election of the new National Executive Committee members, and to grant other appropriate relief, as set out in the notice of counter application to which this affidavit is attached." It follows from the aforegoing Respondents' uncontroverted facts which I accordingly accept as correct that the conclusion is inescapable, in my view, that the Respondents have succeeded to establish a clear right, an injury actually committed and that there is no adequate alternative remedy. See Setlogelo v Setlogelo 1914 AD 221. By the same token it follows in my judgment that this is a proper case for a declaratory order as sought in the Respondents' counter application. Before closing this judgment I should like to record that the parties are on common ground that as far back as March 2001 the Applicants duly withdrew the application against the 3rd Respondent Lesao Lehohla with . costs. In my opinion it was grossly irresponsible for the Applicants to have sued the 3rd Respondent in the first place as he was and is a Member of Parliament representing 4th Respondent. Section 8 (b) (ii) of the constitution of 4th Respondent clearly stipulates that members of parliament representing L CD (4th Respondent) shall qualify to participate in the party annual general conference. On this score I consider that the Applicants' attorneys are equally to blame for being party to such a frivolous and indeed baseless application against 3rd Respondent. They must be warned that they run the risk of paying costs de bonis propriis if they continue to behave in this irresponsible manner. To make maters worse they have allowed the attack against 3rd Respondent's right to participate in the disputed conference to be continued vigorously in the replying affidavits notwithstanding the withdrawal of the Applicants' case against him. Indeed the time has now come for legal practitioners to be warned against making their clients' cases their own. In such a scenario it is always difficult for a legal practitioner to be of assistance to the Court (and yet this is his/her professional call of duty in the first place) nor is it easy to separate the wood from the trees so to speak in such scenario. In the result there shall be an order as follows: (a) The Applicants' application is dismissed with costs. (b) The Respondents' counter application is granted as prayed with costs to be paid by the Applicants jointly and severally, the one paying the others to be absolved (c) The costs awarded to the Respondents in terms of this order shall include the costs consequent upon the employment of two counsel. (d) For the avoidance of doubt it is hereby declared that the 4th Respondent's N EC for 2000 has ceased to have any status as the N EC of the party. M . M. Ramodibedi J U D GE 3rd day of August 2001 For the Applicants : P. Pretorius SC (with him Adv. D. Metlae) For the Respondents: P. Kennedy SC (with him Adv. S. Phafane) 29