Basotho National Party v Attorney-General (CIV/APN 152 of 97) [1998] LSCA 36 (28 April 1998)

CIV/APN/152/97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between B A S O T HO N A T I O N AL P A R TY A P P L I C A NT and A T T O R N E Y - G E N E R AL R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice M . M. R a m o d i b e di on the 2 8 th d ay of April, 1 9 98 T h is c a se raises the q u e s t i on of set-off. T he A p p l i c a nt w h i ch is a political party h as applied for an o r d er in the following t e r ms : "1. D i s p e n s i ng w i th the f o r ms a nd p e r i od of service of this application on the g r o u n ds of its u r g e n c y. 2. T h at R u le Nisi be issued calling u p on the R e s p o n d e nt to s h ow c a u se if a n y, w hy the following orders s h o u ld n ot be m a de final a nd absolute. (a) T h at the e x e c u t i on of the various w a r r a n ts of e x e c u t i on against the Applicant's c a n d i d a t es for the costs, issued by the R e s p o n d e nt should not be stayed until the final determination of prayer 2 ( b) b e l o w. (b) T he R e s p o n d e nt should not be c o m p e l l ed to accept an a m o u nt of R 6 0 , 0 00 plus its interests, as set off to satisfy the various warrants of executions issued against its candidates. (c) T he R e s p o n d e nt be o r d e r ed to p ay the costs of this application. ' 3. G r a n t i ng s u ch further and/or alternative relief 4. T h at prayers 1 a nd 2 ( a) should operate as an Interim O r d e r ." W i t h o ut doing violence to essential detail the m a in facts w h i ch give rise to the litigation c an be briefly recorded as follows: F o l l o w i ng the 1 9 93 G e n e r al Elections w h i ch w e re w on by the B CP the Applicant's candidates brought various petitions before the C o u rt of D i s p u t ed Returns challenging the o u t c o me of the elections in question. In d ue c o u r se all these petitions w e re dismissed a nd the Applicant's candidates w e re all o r d e r ed to p ay costs on attorney a nd client scale. A s u b s e q u e nt r e v i ew by the Applicant's candidates to this C o u rt w as dismissed with costs on the 30th A u g u st 1 9 9 6. P u r s u a nt to the said order of costs on attorney a nd client scale a w a r d ed against Applicant's candidates in the C o u rt of D i s p u t ed R e t u r ns the R e s p o n d e nt duly issued out a warrant of execution against e a ch of the Applicant's candidates T he a m o u nt claimed in e a ch warrant of execution varied f r om petitioner to petitioner but the total a m o u nt as gleaned f r om s u ch warrants is well in e x c e ss of eighty t h o u s a nd maloti ( M 8 0 , 0 0 0 ). As against this b a c k g r o u nd the Applicant c o n t e n ds that on the 13th A u g u st 1 9 85 G e n e r al Elections w e re held at w h i ch all its candidates w e re returned. T he Applicant alleges that it h ad paid a deposit of sixty t h o u s a nd M a l o ti ( M 6 0 , 0 00 0 0) for its candidates in t e r ms of the Electoral A ct N o . 23 of 1 9 6 8. N ow in t e r ms of Section 27 of the Electoral A ct N o . 23 of 1 9 68 the s um deposited by or on behalf of a candidate shall be returned to the depositor. T h us the Applicant c o n t e n ds that the M 6 0 , 0 0 0 - 00 in question should operate as a set-off against the R e s p o n d e n t 's costs ordered by the C o u rt of D i s p u t ed R e t u r n s. T he R e s p o n d e nt h as raised a point in limine to the effect that the Applicant has no locus standi in judicio to institute these p r o c e e d i n gs by virtue of the fact that the execution in question is not directed against the Applicant itself but against the Applicant's candidates. At the hearing of the matter before me on the 6th April, 1 9 98 I ruled that the question of locus standi be argued together w i th the merits of the application. I did this in the interests of justice in case I f o u nd m y s e lf u n a b le to m a ke an i m m e d i a te a nd informed ruling on the point in limine w h i ch m i g ht h a ve the effect of c o n c l u d i ng the matter in favour of either party without the necessity of g o i ng into the merits D e a l i ng w i th a similar situation in B a s o t ho N a t i o n al P a r ty v T he M a n a g e m e nt B o a r d, L e s o t ho H i g h l a n ds R e v e n ue F u nd a nd 2 O t h e rs C I V / A P N / 3 3 5 / 95 (unreported) at p a ge 3 I h ad occasion to state the following r e m a r ks w h i ch I should like to repeat in this matter: - "I find myself in very g o od c o m p a ny in this a p p r o a ch as it h as b e c o me increasingly c o m m on for the question of locus standi to be considered together with the merits of the claim. S ee K e n d r i ck v C o m m u n i ty D e v e l o p m e nt B o a rd 1 9 83 (4) S. A. 5 3 2. S ee also T he A d m i n i s t r a t o r, T r a n s v a al a nd the Firs I n v e s t m e n ts (Pty) L t d. v J o h a n n e s b u rg City C o u n c il 1 9 71 (1) S. A. 56(A) in w h i ch the question of locus standi w as raised for the first time in the appeal." It also s e e ms to me that the question w h e t h er the Applicant h as locus standi in judicio to bring these proceedings is closely intertwined with the question w h e t h er the Applicant paid the said deposit of M 6 0 , 0 0 0 - 00 at all h e n ce the n e ed to determine both issues together. T he b e d r o ck of Applicant's case, as I see it, is that it paid the deposit of M 6 0 , 0 0 0 - 00 in 1 9 85 as earlier stated. B ut I observe h o w e v er that there is a serious dispute of fact on this issue. M o re importantly I h a ve no d o u bt in my m i nd that the Applicant w as a w a re of this dispute of fact at least as far b a ck as the 30th April 1 9 97 yet it chose to proceed by w ay of notice of m o t i on rather than by action. This is so b e c a u se on that date n a m e ly 30th April 1 9 97 the R e s p o n d e nt w r o te to Applicant's attorneys in terms of A n n e x t u re E R 1 0" to the f o u n d i ng affidavit of Evaristus R. S e k h o n y a na as follows: " 30 April 1 9 97 M e s s rs N. M p h a l a ne & C o. 17 B e d co Centre P O B ox 1 0 00 M a s e ru D e ar Sirs, E L E C T I ON P E T I T I O NS C O S TS OF 1 9 9 3 - R E C O V E RY T H E R E OF We a c k n o w l e d ge receipt of yours dated 29th April, 1 9 97 in connection with the a b o v e. Surely y o ur client B . N . P. m u st h a ve b e en issued with a receipt (original) for the alleged p a y m e nt of M 60 0 00 election deposit. Y ou simply n e ed to p r o d u ce that to substantiate y o ur claim. It is o ur instructions that no s u ch p a y m e nt w as ever m a de a nd y o ur client is p ut to the p r o of thereof. In the m e a n t i m e, we a re further instructed that it h as t a k en t oo l o ng for y o ur client/clients ( B . N . P .) to settle the 1 9 93 election petitions costs a nd that we s h o u ld p r o c e ed to r e c o v er t he ninety t h o u s a nd or so maluti ( M 90 0 0 0 + -) in settlement of t h o se costs. We are taking firm steps to e x e c u te y o ur clients' p r o p e r ty a n d, w h e re n e ed b e, c o n t e m pt p r o c e e d i n gs w h e re s u ch b e c o me n e c e s s a r y, A L T E R N A T I V E L Y, insolvency p r o c e e d i n g s. We are just w a i t i ng to hear f r om the m e s s e n g e rs of court as to the p r o g r e ss t h ey h a ve so far m a d e. Y o u rs faithfully T. M a k h e t he F / A T T O R N EY G E N E R A L ." This w as followed by yet another letter of 2 nd M a y, 1 9 97 A n n e x u re " E R 1 1" in w h i ch the R e s p o n d e nt did not m i n ce his w o r ds about the fact that Applicant's claim w as "strongly" disputed. That letter reads as follows: " 2 nd M a y, 1 9 97 M e s s rs N. M p h a l a ne & C o. 17 B e d co Centre P O B ox 1 0 00 M a s e ru D e ar Sirs, E L E C T I ON P E T I T I O NS C O S TS OF 1 9 9 3 - R E C O V E RY T H E R E OF We do not accept that your clients could h a ve r e m a i n ed d o r m a nt for o v er ten years + without reclaiming the alleged M 60 0 00 allegedly paid as election deposit in 1 9 8 5. T h us we strongly dispute p a y m e nt by y o ur clients of the m o n e y. T h ey h a ve to p r o ve that. A L T E R N A T I V E L Y, if they paid, ( a nd we do n ot c o n c e de that) a nd n e v er r e c l a i m ed the m o n ey for o v er ten y e a r s, surely t h ey are b a r r ed to do so at this point in time. It is for the a b o ve r e a s o ns that we do n ot c o n s i d er that there is a ny q u e s t i on of set-off arising. C o n s e q u e n t l y, we are p r o c e e d i ng w i th execution of y o ur clients' property a nd d e p e n d i ng on the m e s s e n g e r s' return of service, we also h a ve in m i nd taking further legal action as earlier c o n v e y ed to y o u. O ur intention is to e n s u re that the j u d g e m e nt creditor e n j o ys the fruits of his j u d g e m e n t, w h i ch he w as a w a r d ed a l m o st four y e a rs b a c k. N o t h i ng m o r e, n o t h i ng less. Y o u rs faithfully, T. M A K H E T HE F / A T T O R N EY G E N E R A L ." I consider it to be settled l aw that a litigant w ho elects to p r o c e ed on notice of m o t i on runs the risk that a dispute of fact m ay be s h o wn to exist thus entitling the C o u rt in a p r o p er c a se to exercise its discretion to dismiss the application. I n d e ed w h e re facts are in dispute a C o u rt h as a discretion as to the future c o u r se of the proceedings including dismissal of the application or referral to trial or oral e v i d e n ce as the c a se m ay b e. S ee A d b vo I n v e s t m e nt C o. L t d. v M i n i s t er of t he Interior 1 9 56 ( 3) S . A. 3 45 at 3 4 9 - 3 5 0. In this regard it is necessary to b e ar in m i nd the provisions of R u le 8 ( 1 4) of the H i gh C o u rt R u l es w h i ch reads as follows: "If in the opinion of the court the application c a n n ot properly be decided on affidavit the court m ay dismiss the application or m ay m a ke s u ch order as to it s e e ms appropriate with a v i ew to ensuring a just a nd expeditious decision. In particular, but without limiting its discretion, the court m ay direct that oral e v i d e n ce be h e a rd on specified issues with a v i ew to resolving a ny dispute of fact a nd to that e nd m ay order a ny d e p o n e nt to a p p e ar personally or grant leave for h im or a ny other p e r s on to be s u b p o e n a ed to a p p e ar to be e x a m i n ed a nd c r o s s - e x a m i n ed as a witness, or it m ay order that the matter be c o n v e r t ed into a trial w i th appropriate directions as to pleadings or definition of issues, or otherwise as the court m ay d e em fit." I find it inexcusable that despite the fact that as far b a ck as the 30th April 1 9 97 the Applicant w as fully a w a re that there w as a serious dispute of fact as to w h e t h er it h ad in fact paid the alleged deposit of M 6 0 , 0 0 0 - 00 nevertheless the Applicant deliberately c h o se to institute m o t i on p r o c e e d i n gs as o p p o s ed to an action. In my j u d g m e nt this application stands to be dismissed on this g r o u nd alone. I consider it to be a b u se of court process. ' S E T - O FF As earlier stated Applicant's claim is b a s ed on set-off. N ow I N N ES CJ in P o s t m a s t e r - G e n e r al v T a u te 1 9 05 T . S 5 82 stated the following: " S et off, like p a y m e n t, should be p l e a d e d, a nd p r o v e d, so that the court m ay give effect to it." I respectfully agree. T he o n us of p r o of is certainly on the p e r s on claiming set-off to p r o ve it on a balance of probabilities. T h e re is a wealth of authority that before a debt c an qualify for set-off it m u st be easily ascertainable or calculable a nd m u st be s u ch that it c an be established summarily or without prejudice. As M a s on J succinctly put it in H a r d y, N O. a nd H a r s a nt 1 9 13 T . P . D. 4 33 at p 4 4 7: " the d e bt s h o u ld not be o ne d e m a n d i ng for its e s t a b l i s h m e nt a p r o l o n g ed investigation or d e l ay or i n v o l v ed in difficulties a nd J u d g es are n ot to be t oo r e a dy to a d m it c o m p e n s a t i o n ." T h e se r e m a r ks are apposite to the c l a im of set-off b e f o re m e. Set off is a matter of judicial discretion. S ee A d j u st I n v e s t m e n ts (Pty) L t d. v W i ld l 9 68 ( 3 ) S . A. 29 at 3 2. A p p l y i ng t h e se principles' to the p r e s e nt c a se I r e m a in u n p e r s u a d ed that the set-off alleged by the A p p l i c a nt is c a p a b le of e a sy a s c e r t a i n m e nt a nd that it c an be established s u m m a r i ly w i t h o ut a p r o l o n g ed investigation or delay. On the contrary a nd f r om the perusal of the p a p e rs b e f o re me as fully set o ut b e l ow I am satisfied that the A p p l i c a nt h as failed dismally to p r o ve the alleged set-off. It h as for that m a t t er failed to p r o d u ce a receipt e v i d e n c i ng the alleged p a y m e nt of M 6 0 , 0 0 0 - 00 deposit. T he A p p l i c a nt relies on A n n e x t u re " ER 1" for its alleged p a y m e n t. T h is a n n e x u re is h o w e v er n ot a receipt b ut a S ub A c c o u n t a n t 's C a sh B o o k. T he entry that the Applicant relies u p on records that on 13/8/85 an a m o u nt of M 6 0 , 0 0 0 . 00 w as received f r om the "Electoral O f f i c e" as p er receipt N o. 7 7 6 1 6 4. It is clear therefore that on the face of it this annexture d o es not e v en attempt to p r o ve that the p a y m e nt of M 6 0 , 0 0 0 - 00 w as m a de by the A p p l i c a nt itself. ( T h e re is no m e n t i on of the A p p l i c a n t 's n a me at all). On the contrary s u ch p a y m e nt w as clearly m a de by the Electoral Office. T h e re is no affidavit f r om that office to s h ow that the m o n ey in question w as p a id by the A p p l i c a nt at all. T he d e p o n e nt Evaristus R. S e k h o n y a na himself d o es n ot e v en c l a im to h a ve b e en present w h en this m o n ey w as paid. N or is there an affidavit of a person w ho m a de the entry in the S ub Accountant's cash b o ok or a n y o ne w ho s aw h im effect the entry in question. M r. M a k h e t he for the R e s p o n d e nt has argued in the circumstances that the contents of the entry in question are no m o re than inadmissible hearsay. T he contention s e e ms to me to be both sound and unanswerable. Indeed the c o m m on law, as I have always conceived it to b e, is that m e re production of a d o c u m e nt is not evidence of the truth of the contents thereof. It is merely evidence of the fact that the d o c u m e nt w as written by the author and that the latter said w h at the d o c u m e nt contains. Authorities are legion in this respect. See for an e x a m p le W e i n t r a ub v O x f o rd B r i nk W o r ks (Pty) Ltd. 1 9 48 (1) S. A. 1 0 90 at 1 0 93 Selero (Pty) L td a nd A n o t h er v C h a u v i er a nd A n o t h er 1 9 82 (2) S. A. 2 08 (T) at 2 1 6. There is again the aspect that it has taken Applicant m o re than ten (10) years to claim a refund of the alleged deposit of M 6 0 , 0 0 0 . 0 0. I consider it to be highly improbable that the Applicant could have sat b a ck for such an inordinate length of time without claiming such a substantial refund if its story that it h ad paid is to be believed at all. It is true the Applicant has attached Annexture " ER 2" w h i ch is a letter dated 29th N o v e m b er 1985 addressed to the Chief Electoral Officer a nd purporting to claim a refund of M 6 0 , 0 0 0 . 0 0. That letter is h o w e v er unsigned a nd its authenticity has not been proved. There is no evidence that it reached the R e s p o n d e nt at all. For the reasons stated earlier in this j u d g m e nt it s e e ms to me that, this letter is inadmissible as hearsay. T he Applicant has tried to o v e r c o me the p r o b l em of its apparent failure to c l a im a refund of the alleged deposit of M 6 0 , 0 0 0 . 00 by belatedly attaching a "supporting affidavit" of o ne M a h l a be M a l e f e t s a ne J a ne to the replying affidavit of Evarisrus R. S e k h o n y a n a. T he said M a h l a be M a l e f e t s a ne J a ne states as follows in p a r a g r a ph 2 thereof: " As I h a ve indicated I w as the Councillors (sic) in c h a r ge of the constitutional affairs, the claim of a refund of M 6 0 , 0 0 0 . 00 c a me to o ur attention but the attitude of the Military G o v e r n m e nt w as that it w o u ld not involve itself in the matters pertaining to the political parties w h i ch w e re then s u s p e n d e d. T h e r e f o re the A p p l i c a nt h ad to w a it until the d e m o c r a t ic G o v e r n m e nt w as elected." T h e re is h o w e v er no explanation w hy this "supporting affidavit" w as only u s ed at the replying stage w h en the R e s p o n d e nt c o u ld no longer be in a position to react to it. A c c o r d i n g ly I perceive prejudice to the R e s p o n d e nt here. In a ny event I find the "supporting affidavit" glaringly lacking in essential detail. It is not clear as to w ho m a de the claim of a refund a nd w h e n. M o r e o v er I fail to understand h ow the Applicant could reasonably h a ve a g r e ed to wait "until the democratic G o v e r n m e nt w as elected" before getting its alleged refund. T h e re w as simply no k n o w i ng at the time w h en that w o u ld b e. In a ny e v e nt courts of l aw w e re a l w a ys o p en a nd I consider that the Applicant w o u ld h a ve resorted to t h em if its story is to be believed. L O C US S T A N DI IN J U D I C IO T he allegation u p on w h i ch the Applicant's locus standi rests is that the Applicant h as paid the M 6 0 , 0 0 0 . 00 deposit in 1 9 85 as " S p o n s o r" of its candidates. I h a ve already rejected this claim for r e a s o ns fully set out a b o v e. A c c o r d i n g ly Applicant's locus standi b a s ed on p a y m e nt m u st also fail. T h e re is a n o t h er r e a s o n, p e r h a ps a better r e a s o n, w hy A p p l i c a n t 's c l a im on locus standi m u st fail. It is indeed c o m m on c a u se that the A p p l i c a nt w as n ot a party to the petitions in the C o u rt of D i s p u t ed R e t u r ns resulting in the w a r r a n ts of e x e c u t i on in question. T he Applicant's c a n d i d a t es s u ed in their o wn p e r s o n al n a m e s. T h us the order of costs in question w as n ot directed against the A p p l i c a nt itself but against its candidates. ( suspect that if s u ch o r d er h ad b e en m a de against the A p p l i c a nt itself the A p p l i c a nt w o u ld h a ve raised a h ue a nd cry. It w o u ld no d o u bt h a ve c l a i m ed lack of locus standi in judicio. T he point I w i sh to m a ke here is that the A p p l i c a nt m a y, at best, h a ve an indirect interest in the matter but it certainly d o es n ot h a ve the n e c e s s a ry direct a nd substantial interest c a p a b le of legal e n f o r c e m e n t. S ee B a s o t ho N a t i o n al P a r ty v T he M a n a g e m e nt B o a r d, L e s o t ho H i g h l a n ds R e v e n ue F u nd (supra) at p 1 4. W h at I think is h a p p e n i ng h e re is that the A p p l i c a nt is s e e k i ng to bring a representative application on b e h a lf of its m e m b e rs w h i ch in my v i ew it is i n c o m p e t e nt to d o. To h o ld o t h e r w i se w o u ld o p en the d o or to the R o m an L aw "actio p o p u l a r i s" w h i ch h as long b e c o me obsolete. S ee L e s o t ho H u m an R i g h ts A l e rt G r o up v M i n i s t er of J u s t i ce a nd H u m an R i g h ts & O t h e rs 1 9 9 3 - 94 L e s o t ho L aw R e p o r ts a nd L e g al Bulletin 2 6 4. A h m a d i y ya A n j u m an Ishaati - I s l am L a h o re ( S o u th A f r i c a) a nd A n o t h er v M u s l im Judicial C o u n c il ( C a p et a nd o t h e rs 1 9 84 ( 4) S . A. 8 5 5. In all the circumstances of the case I am satisfied that the A p p l i c a nt h as failed to m a ke o ut a c a se for the relief sought. A c c o r d i n g ly the R u le is h e r e by discharged a nd the application d i s m i s s ed w i th costs. M . M. R a m o d i b e di J U D GE 28th d ay of April, 1 9 98 F or Applicant F or R e s p o n d e nt : : M r. M p h a l a ne M r. M a k h e t he