Fothoane and Another v President - Christian Democratic Party (Nanabetsane Ramokuena) and Others (CIV/APN 243 of 99) [2000] LSCA 31 (7 February 2000)

CIV/APN/243/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: P H AI F O T H O A NE ' M A M O K O TO S E K O N Y E LA 1ST A P P L I C A NT 2 ND A P P L I C A NT and P R E S I D E NT - C H R I S T I AN D E M O C R A T IC P A R TY ( N A N A B E T S A NE R A M O K U E N A) G E N E R AL S E C R E T A RY -C. D. P. I T U M E L E NG R A M O NE C H R I S T I AN D E M O C R A T IC P A R TY T H U SO L I T S O A NE N T JA T H O O LA T HE M I N I S T ER OF L AW A ND C O N S T I T U T I O N AL A F F A I RS T HE A T T O R N E Y - G E N E R AL 1ST R E S P O N D E NT 2 ND R E S P O N D E NT 3 RD R E S P O N D E NT 4 TH R E S P O N D E NT 5 TH R E S P O N D E NT 6 TH R E S P O N D E NT 7 TH R E S P O N D E NT J U D G M E NT To be delivered by the H o n o u r a b le M r. Justice G . N. M o f o lo on the 7th d ay of F e b r u a r y. 2 0 0 0. T he applicants Phai F o t h o a ne a nd ' M a m o k o to S e k o n y e la applied on an urgent basis to this court for an o r d er in the following t e r m s: 1. T h at t he n o r m al periods a nd m o d es of service be dispensed with. 2. That a R u le Nisi be issued returnable on a date a nd t i me to be d e t e r m i n ed by this H o n o u r a b le C o u rt calling u p on the r e s p o n d e n ts to s h ow c a u se (if a n y) w h y: (a) (b) © T he r e m o v al of applicants f r om the Interim Political Authority shall not be declared null a nd void a nd of no force or effect. T he 6th gazettment of the 8th a nd r e s p o n d e n ts shall not be declared as null a nd void a nd of no force a nd effect. T he subsequent a p p o i n t m e nt of the 5th a nd 6th r e s p o n d e n ts in the Interim Political Authority shall not be declared null a nd void a nd of no force a nd effect. (d) Applicants shall not he re-instated as representative of the Christian D e m o c r a t ic Party in the Interim Political Authority. 3. 4. 5. C o s ts of suit. Further and/or alternative relief. T h at prayer 1 operate with i m m e d i a te effect. T he application w as o p p o s e d. F r om a reading of 1st applicant's affidavit, he gives the u n m i s t a k a b le impression that his a nd the 2 nd applicant's task w as at all material times to represent the interests of the 3rd r e s p o n d e nt a nd that they did represent these interests consulting a nd reporting to the 1st r e s p o n d e nt at all material times of their participation in the proceedings of the Interim Political Authority (see p a r a g r a p hs 7 - 9 of the F o u n d i ng Affidavit). In a n s w er to these allegations the 1st r e s p o n d e nt h a s, in his F o u n d i ng Affidavit , categorically denied t h e m. At P a r a g r a ph 6 he denies ' D e p o n e nt ever g a ve me a ny reports at all since his a p p o i n t m e nt aforesaid, D e p o n e nt t o ok himself to be a b o ve e v e r y b o dy including the very party that put h im there ---' At p a r a g r a ph 7 after denying he continues '— I w e nt to D e p o n e n t 's place to get an u p d a te as the party w as in the dark as to the d e v e l o p m e n ts in I. P. A. S he then a s k ed me a b o ut m o d e ls a nd I g a ve her instructions as to w h i ch m o d el the party w a n t e d .' At paragraph 9 1st respondent says w h en 1st applicant g a ve an interview to M o - A f r i ka he h ad no m a n d a te to do so for he h ad not consulted the executive c o m m i t t ee or the 1 st respondent. At paragraph 10 1 st r e s p o n d e nt says w h en the P r i me Minister h ad called Party L e a d e rs the d e p o n e nt h ad not i n f o r m ed the party of the meeting. T he tenor of 1st respondent's response is that he h ad to go to 1st applicant to be u p d a t ed of 1 PA proceedings. This court d o es not k n ow a nd the applicants h a ve not i n f o r m ed the court of the m e a ns a nd channels e m p l o y ed by the applicants to regularly report their activities to the 1st respondent. F r om the record of proceedings before m e, it w o u ld s e em that the applicants w e re s w o rn in as m e m b e rs of the Interim Political Authority on 9 D e c e m b e r, 1 9 98 ostensibly following r e c o m m e n d a t i on by the 3rd respondent for sub-section (2) of section 5 of the Interim Political Authority A c t, 1 9 98 reads: subject to section 8 a nd 9, m e m b e rs referred to in s u b- section 1 shall be appointed by their respective political parties. In this court's v i e w, if applicants w e re appointed by their party it follows that 3rd respondent c an r e m o ve t h em f r om I P A. In fact section 5 subsection ( 3) r e a ds A political party m a y, at a ny t i m e, in writing, w i t h d r aw its representative f r om the Authority a nd s u ch a representative shall forthwith c e a se to be a m e m b e r. A n o t h er reason for the w i t h d r a w al of a representative f r om the I PA is given as, vide section 10 subsection (3): w h e re a m e m b er is absent or is o t h e r w i se unable to p e r f o rm his duties, the party that appointed h im m ay appoint a p e r s on to act in that position for that period. M r. M o s i to for the applicant h as raised three issues for determination by this court a nd these are:- (a) D o es a m e m b er of I PA h a ve a right to a hearing prior to his w i t h d r a w al therefrom by his political party? (b) W e re applicants h e a rd in this case before purported w i t h d r a w a l? © W as their w i t h d r a w al f r om I PA not null a nd v o i d? Regarding (a) a b o v e, although statutorily it w o u ld appear m e m b e rs of I PA are in the s a me class as c o m m on l aw e m p l o y e es a nd c an be w i t h d r a wn on the w h im of a political party so long as a political party h as d o ne so in writing or for r e a s o ns contemplated in section 10(3) of the I PA A c t, a b o v e, the attitude of courts a nd no less this court is that notwithstanding that the w i t h d r a w al is statutohly authorised, since the statute d o es not exclude the n e ed to be heard, a m e m b er m u st be h e a rd before his m e m b e r s h ip is terminated. T he hearing w o u ld of c o u r se be by the very political party w h i ch appointed the m e m b er to the I P A. H u m an b e i ng are n e v er to be treated like h o se but are to be treated fairly a nd with respect before their rights are taken a w a y. An important inquiry w h i ch arises is; w e re applicants h e a rd before they w e re r e m o v ed from I P A, by w h o m? A c c o r d i ng to a n n e x u re 'A' applicants w e re invited to Ha Tlali ( M a k h a l e ng constituency) by m e m b e rs of M a k h a l e n g. It w o u ld a p p e ar the invitation w as by C h a i r m an of M a k h a l e ng Constituency. 1st applicant h as said the invitation w as by a c h a i r m an a nd m o r e o v er there w as no a g e n d a. In the first place, the invitation h ad nothing to do with applicants in that applicants b e i ng m e m b e rs of the I PA are responsible to the 3rd r e s p o n d e nt a nd not to a constituent m e m b er of the 3rd respondent. S e c o n d l y, applicants w e re not given a g l i m p se of w h at they w e re invited for in the f o rm of an a g e n da in order to prepare t h e m s e l v es for the meeting. A c c o r d i ng to Standing O r d e rs a nd R u l es of P r o c e d u re at Party M e e t i n gs of the 3rd respondent, R u le 11.2 is to be effected that: business shall be p r o c e e d ed with in accordance with a g e n da unless otherwise d e c i d ed by the meeting. This is a p e r e m p t o ry requirement for the validity of a meeting. As the court understands the rule, an a g e n da m u st a c c o m p a ny notice of m e e t i ng for a m e e t i ng to be valid. In the meeting m e m b e rs m ay include matters not appearing on the a g e n da for R u le 11.3 says: No questions other than those appearing on the a g e n d a, shall be debated, provided that the m e e t i ng m ay by resolution agree to discuss a matter not included on the a g e n d a. This rule m a k es an a g e n da a pre-requisite of meetings prohibiting discussions on matters that don't a p p e ar on the a g e n d a. W h i le only matters on the a g e n da c an be debated, by resolution other matters not included on the a g e n da c an be discussed. Since there w as no a g e n da as required by laws g o v e r n i ng the 3rd respondent, it stands to reason that as there w as nothing to discuss in the so-called m e e t i ng of 25 M a y, 1999, there w as no meeting at all. A n n e x u re ' A' of 21 M a y, 1 9 99 violated rules of the 3rd respondent a nd c a n n ot be allowed to stand. 1 do not k n ow the purport of a n n e x u re ' B' dated 29 M a y, 1 9 9 9; in a ny event it has nothing to do with annexure 'A' I st applicant at p a r a g r a ph 13 says a n n e x u re 'ET a nd 'C w e re 'purported to be notices to ourselves informing us of our w i t h d r a w al f r om I P A — - -' In a n s w er to the 1st applicant, 1st respondent h as said that applicants k n ow that 'the issue of their p e r f o r m a n ce a nd possible r e m o v al f r om the I PA w as in the a g e n da for the said m e e t i ng w h i ch he d e c i d ed not to attend —-- I pause here to ask, w h i ch meeting? Well, if it w as m e e t i ng of 25 M a y, 1 9 99 1 h a ve already said that this w as no meeting. 1st Applicant h as said at p a r a g r a ph 12 of his affidavit that he received a n n e x u re ' A' on 21 M a y, 1 9 99 a nd a n n e x u re B' on 31 M a y, 1 9 99 clearly after the 29 M a y, 1 9 99 a nd 1st respondent's r e s p o n se in this regard is, total silence; his failure to a n s w er of course a m o u n ts to an admission. W h at use w as it, then, to receive an a g e n da after the m e e t i n g? A c c o r d i ng to the 1st applicant, their w i t h d r a w al w as m a de by o ne constituency n a m e l y, M a k h a l e ng w h e r e as the 3rd r e s p o n d e nt h as 3 constituencies n a m e l y: Q e me constituency being that of 1st applicant K o r o - k o ro " M a k h a l e ng " " " that of 2 nd applicant that of 1 st respondent. It will be s e en that applicants' w i t h d r a w al f r om the I PA w as m a de by a constituency applicants are not responsible to. To this a n o m a ly the 1st respondent has said at paragraph 12 of his O p p o s i ng Affidavit: '— T he meeting that w as called w as a properly c o n v e n ed meeting. We w e re being called by our o wn b a s e, that is the founder constituency a nd in a ny event the m e e t i ng h ad b e en called in consultation with the executive c o m m i t t e e/ Well, M a k h a l e ng constituency is not the 3rd respondent. In a ny event if it w as in consultation with the 3rd respondent it w o u ld be expected that minutes of the executive committee w o u ld h a ve b e en tabled or submitted by the executive c o m m i t t ee of the 3rd respondent failing w h i ch for the Secretary of the 3rd respondent to h a ve confirmed by affidavit that there w as such consultation. I do not k n ow in w h at capacity Agatha Patala wrote a letter of 29 M a y, 1 9 9 9. In a ny event, unlike w h at 1st respondent said, she has not said that in recalling applicants from the I PA it w as in consultation with the executive c o m m i t t ee or she w as authorised by it. Of the value of natural justice Prof. Baxter in his Administrative L aw at p. 5 38 quoted M a g a r r y, J. In. John v. Rees (1970) C h. 345.402 w ho said: '— the path of the law is stricken with e x a m p l es of o p en a nd shut cases w h i c h, in the event, w e re completely answered; of inexplicable conduct w h i ch w as fully explained, of fixed and unalterable determination that by discussion, suffered a c h a n g e/ I am not a w a re that the 1 st respondent availed himself of an opportunity to call applicants before h im to explain their inexplicable conduct w h i ch w o u ld h a ve been fully explained a nd by discussion, their conduct suffered a change. T he 1st respondent did not avail himself of such an opportunity b e c a u se applicants w e re not responsible for conduct attributed to them. This is a strange country a nd the people are strange in that, belonging together, matters w h i ch w o u ld divide t h em are not brought to the fore in a spirit of friendliness and comradeship. Prof. Baxter at p.539 also reminds us of the remarkable expression of audi alteram parten as a process value in the Instruction of Ptahhotep, from the 6th Dynasty (2300 - 2150 B. C.), which bears repetition: 'If you are a man who leads, Listen calmly to the speech of one who pleads; Don't stop him from purging his body Of that which he planned to tell. A man in distress wants to pour out his heart More than that his case be won. About him who stops a plea One says: 'why does he reject it?' Not all one pleads for can be granted, But a good hearing soothes the heart. Lawyers and judges are not that heartless as some think. Applicants plea was not rejected, they were not given an opportunity to be heard and that by a doubtful body and certainly not by the 3rd respondent or through its offices. This court has no hesitation in granting this application and accordingly the rule is confirmed with costs to the applicants. G . N . M O F O LO J U D GE 28th January, 2000. F or the Applicants: F or the R e s p o n d e n t s: M r. P h a f a ne M r. M o s i to 10