Basutoland (BCP) VTransformation Resource Centre and 45 others (C of A (CIV) No 22/2024) [2024] LSCA 20 (1 November 2024)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO 22/2024 CIV/APN/289/2021 In the matter between BASUTOLAND CONGRESS PARTY (BCP) APPELLANT AND TRANSFORMATION RESOURCE CENTRE 1ST RESPONDENT DEMOCRATIC PARTY OF LESOTHO 2ND RESPONDENT INDEPENDENCE ELECTORAL COMMISSION 3RD RESPONDENT ALL BASOTHO CONCENTION (ABC) AREKA EA BAENA (BAENA_ 4TH RESPONDENT 5TH RESPONDENT ALL DEMOCRATIC COOPERATION (ADC) 6TH RESPONDENT AFRICAN UNITY MOVEMENT (AUM) 7TH RESPONDENT BASUTOLAND AFRICAN NATIONAL CONGRESS (BANC) 8TH RESPONDENT BASOTHO BATHO DEMOCRARITY PARTY (BBDP) 9TH RESPONDENT BASOTHO DEMOCRATIC NATIONAL PARTY ((BDNP) 10TH RESPONDENT BASOTHO NATIONAL PARTY (BNP) 11TH RESPONDENT COMMUNITY FREEDOM MOVEMENT 12TH RESPONDENT DEMOCRATIC CONGRESS (DC) 13TH RESPONDENT HAMORE DEMOCRATIC PARTY (HDP) 14TH RESPONDENT LESOTHO CONGRESS FOR DEMOCRACY(LCD) 15TH RESPONDENT LEKHOTLA LA MEKHOA LA MEETLO (LMM) 16TH RESPONDENT LESOTHO PEOPLE’S CONGRESS PARTY (LPC) 17TH RESPONDENT LESOTHO WORKERS PARTY (LWP) 18TH RESPONDENT MAREMATLOU FREEDOM PARTY (MFP) 19TH RESPONDENT MPULULE POLITICAL SUMMIT (MPS) 20TH RESPONDENT NATIONAL INDEPENDENT PARTY (NIP) 21ST RESPONDENT POPULAR FRONT FOR DEMOCRACY (PFD) 22ND RESPONDENT PROGRESSIVE DEMOCRATS (PD) 23RD RESPONDENT REFORMED CONGRESS OF LESOTHO (RCL) 24TH RESPONDENT SANKATANA SOCIAL DEMOCRACY (SSD) 25TH RESPONDENT SOCIALISTS REVOLUTIONARY PARTY (SR) 26TH RESPONDENT THE WHITE HORSE PARTY (WHP) 27TH RESPONDENT TSEBE SOCIAL DEMOCRATS (TSD) 28TH RESPONDENT ALLIANCE OF DEMOCRATS (AD) 29TH RESPONDENT BASOTHO THABENG EA SENAI (BTS) 30TH RESPONDENT MOVEMENT FOR ECONOMIC CHANGE (MEC) 31ST RESPONDENT TRUE RECONCILLIATION UNITY (TRU) 32ND RESPONDENT MAJALEFA DEVELOPMENT MOVEMENT (MDM) 33RD RESPONDENT BASOTHO REDEVELOPMENT PARTY (BRP) 34TH RESPONDENT AFRICAN ARK (AA) 35TH RESPONDENT BASUTOLAND TOTAL LIBERATION CONGRESS 36TH RESPONDENT MPHATLALATSANE (HOPE) UNITED FOR CHANGE (UFC) 37TH RESPONDENT 38TH RESPONDENT BASOTHO COVENANT MOVEMENT (BCM) 39TH RESPONDENT BASOTHO ACTION PARTY (BAP) 40TH RESPONDENT BASOTHO PATRIOTIC PARTY (BPP) 41ST RESPONDENT BASOTHO LIBERASTION MOVEMENT (BLM) 42ND RESPONDENT REGISTER GENERAL OF SOCIETIES 43RD RESPONDENT ATTORNEY GENERAL 44TH RESPONDENT MINISTER OF JUSTICE, LAW AND CONSTITUTIONAL AFFAIRS 45TH RESPONDENT DIRECTOR OF PUBLIC PROSECUTIONS 46TH RESPONDENT CORAM: MOSITO, P DAMASEB, AJA MUSONDA, AJA CHINHENGO, AJA VAN DER WESTHUIZEN, AJA HEARD: 17 OCTOBER 2024 DELIVERED: 1 NOVEMBER 2024 SUMMARY In an application for a mandamus to compel the Independent Electoral Commission and the Registrar-General of Societies the High Court has jurisdiction and the Transformation Resources Centre has standing. J UDGMENT J VAN DER WESTHUIZEN, AJA: Introduction [1] This is an appeal against a judgment by Sakoane CJ, for a unanimous full bench of three judges of the High Court. The appellant is a political party, the Basutholand Congress Party (BCP), the eighth respondent in the application before the High Court. [2] The first respondent before this Court is the Transformation Resource Centre (TRC). It was the first applicant in the High Court (together with the Democratic Party of Lesotho, as the second applicant). [3] The first respondent in the application before the High Court was the Independent Electoral Commission (IEC), to whom the first part of the eventual order of the Court was eventually addressed. The IEC is not an appellant before this Court buthas been cited as the third respondent. [4] The Registrar-General of Societies (Registrar), Attorney General, Minister of Justice, Law and Constitutional Affairs and Director of Public Prosecutions were the 42nd to 45th respondents before the High Court. The second part of the order was addressed to the Registrar-General, who did not appeal. The other respondents before the High Court were political parties. The same applies to the appeal before this Court. In limine [5] The appellant applied for condonation of the late filing of its heads of argument. The unopposed application was granted. (Counsel for all parties may benefit though from taking note of paragraphs [2] to [7] and [32} to [34] of this Court’s recent judgment in Theboho Construction v LCT Deliveries (C OF A (CIV) /25/2924; CCT/05462/2022).) [6] Counsel for the respondent submitted that the appeal was moot, since the High Court order had been fully implemented. Questions about proof of this state of affairs were posed from the Bench. Counsel for the appellant stated that his client had not received any notice in terms of the order. The matter cannot be regarded as moot. High Court [7] The application before the High Court was for a mandamus to compel the IEC and Registrar to perform their statutory duties. They had allegedly been neglecting to enforce compliance with the law by political parties. The order sought, was that the IEC and Registrar had to take action against parties who were failing to meet their obligations under the applicable legislation. [8] The first round of the proceedings involved applications for dispatch of records of the IEC and Registrar, which succeeded. Then a lengthy set of detailed prayers were presented to the High Court. In view of the perimeters of this appeal – explained below in [16} and [17] – it is not necessary to deal with these in detail. [9] The High Court meticulously dealt with the relevant legislation, namely the National Assembly Electoral Act (Electoral Act) 14 of 2011; and the Society Rules of 1967, under the Societies Act of 1966. Again, a detailed analysis of the statutory law at stake is not called for in this appeal. [10] Under section 25 of the Electoral Act parties have to apply for registration. Applications for registration must be accompanied by a range of documents. Section 27 provides for the cancellation of the registration of a party; and section 29 for the inspection of documents. The duty to police compliance with these provisions is on the IEC. Section 66A(1)(g) of the Constitution states the function of the IEC to include the registration of political parties. [11] Rules 5, 9 and 11 of the Society Rules deal with the Registrar’s duties, with regard to maintenance and control of a Societies Register, the rendering of returns and the investigation of the affairs of a society. [12] An account of events regarding compliance with the above was presented to the High Court. The judgment records an exchange of letters and a meeting between the director of the TRC and the IEC about “issues around the political parties’ ‘perpetual non- compliance with the requirements of registration and jncessant financial unaccountability (sic)’ “. [13] According to the High Court, the IEC’s defence included that “persuading political parties to comply is more beneficial than enforcement by cancellation of registration of registration” and that “the IEC has a discretion in matters of deregistration of non- compliant political parties”. [14] After analysing the parties’ positions, referring to jurisprudence of the South African Constitutional Court and requirements for a mandamus, the High Court concluded: “The IEC and the Registrar-General must keep their eyes and ears permanently open to see and hear complaints about political parties that vow to be voted into Parliament but do not comply with laws by that very Parliament. Properly kept and regularly updated registers are indispensable tools in closing the gates to non-compliant political parties.” [15] The judgment emphasises the duty of the IEC and Registrar to put in motion the machinery of continuous assessment of compliance by parties. “Political parties are not above the law …”, Sakoane CJ states convincingly. The High Court issued an order directing the IEC and Registrar to take specified steps. Grounds of Appeal [16] In its Grounds of Appeal the appellant submits that the High Court erred and misdirected itself – (1) by holding that it had jurisdiction over the matter, while such jurisdiction vested in the IEC; and – (2) in not finding that the applicants did not have locus standi to seek the relief they sought. This Court [17] During the hearing of oral argument in this Court, counsel for both parties expressly agreed that the only issues to be debated and decided were those stated in the Grounds of Appeal. This judgment is thus limited to the questions whether the High Court had jurisdiction; and whether the respondent parties had standing before the High Court. Jurisdiction [18] Counsel raised an argument, with which few would disagree: ”A court of law cannot entertain the merits of a case without first dealing with its jurisdiction .” According to him, this Court’s judgment in Ramoepana v DPP (C of A (CIV) 33/2018) “settled this matter”. [19] So far, so good. [20] Then, counsel grounds his submission that the High Court had no jurisdiction and “could not make any of the orders it pronounced” on sections 27 and 28 of the Electoral Act. Section 27 provides that the IEC “may cancel” the registration of a political party. In terms of section 28 a political party that is aggrieved by a decision of the IEC may “appeal to the High Court against the decision”. [21] According to counsel for the appellant, the sections referred to spell out that the power to ensure compliance with the Electoral Act vests exclusively in the IEC and no other body. Thus, the legislature, in the Electoral Act, ousted the jurisdiction of the High Court in matters regarding compliance with very important statutory requirements relating to political parties! This cannot conceivably be the case in a constitutional democracy under the rule of law. In terms of the Constitution and all relevant authority and comparative jurisprudence, courts are tasked with hearing matters regarding compliance with the law. The IEC cannot be isolated from and indeed above judicial scrutiny. As indicated above, Sakoane CJ states in the High Court judgment that political parties are not above the law. Neither is the IEC. [22] Section 28 clearly deals with appeals against decisions of the IEC not to register or cancel the registration of a party. Quite the opposite is at stake here: The IEC is not taken to task for acting against any party. The complaint is that it does not do what it is legally tasked to do! The order sought and issued is that the IEC must do its work! There is no doubt that a court of law may be approached to declare a state institution to be in breach of its constitutional or legal obligations; and to order it to act according to the law. If a constitution or statute says that the president must call for an election, it surely cannot mean that if she or he refrains from doing so, courts have no jurisdiction to test the president’s conduct! [23] After questions from the bench, counsel for the appellant wisely conceded on the issue of jurisdiction. There is no doubt that the High Court had jurisdiction. Standing [24] The submission that the TRC lacked standing to approach the High Court is related to the one about jurisdiction – and equally devoid of merit. Yet, the appellant’s counsel did not abandon it. [25] The appellant argues that there is no proof that the applicants before the High Court have been affected by the exercise of statutory powers by the IEC in registering political parties. Relying on case law, such as Lesotho Human Rights Alert Group v Minister of Justice and Human Rights and Others (LAC 1990 – 1994) and other decisions, counsel for the appellant argued that only a party with a direct interest can sue. During oral argument he repeatedly stressed that natural persons or parties should have sued in this case. The cases referred to by the appellant dwelled on the Roman Dutch actio popularis, which was allegedly abandoned centuries ago. [25] Counsel for the respondent referred to several recent decisions to illustrate a more inclusive approach to standing in matters of public interest, even though a direct and sufficient interest is still required. Counsel also quoted from the recent case of Democratic Congress and Others v Puseletso and Others (C OF A (CIV) NO 13/2024; [2024] LSCA 1(14 June 2024)): “As a citizen and registered voter he has a direct and personal interest in upholding and enforcing his fundamental rights and freedoms enshrined in the Constitution.” The Court also mentioned “the proper functioning of the democratic process under section 20 of the Constitution”. [26] The director of the TRC describes the organisation as “a juristic body registered as such … its respective members are citizens of Lesotho …its primary objects are to promote, preserve and protect human rights standards in the Kingdom … The organisation is thereby falling within a class of organised groups of concerned citizens who have the object that promotes democracy and peace as a matter of principle. Above all, it aims to promote constitutional values and ethos of human rights, peace and good governance as underpinned under Section 20 of the Constitution of Lesotho …” [27] Section 20 of the Constitution protects the right to participate in government. This does not only apply to politicians. Fair and free elections lie at the core of democratic government. It is of the utmost importance that political parties that participate in elections must comply with the law, in order to compete fairly for election. The entire public has an interest in properly regulated elections. So does every individual, as well as any properly registered organisation that represents members of the public. Organisations like the TRC are the eyes, ears and life blood of democracy. [28] The TRC had locus standi in the High Court. For similar reasons the appellant has standing in this Court, even though this was questioned by counsel for the respondent. Conclusion [29] The appeal must fail. Costs are to follow the result. This is not a dispute with the government about rights, but litigation amongst political parties and an organisation promoting democracy. The IEC and Registrar did not participate in these appeal proceedings. Order [30] In view of the above – the appeal is dismissed with costs. ____________________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL __________________________________ K E MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: I agree: _______________________________ PT DAMASEB ACTING JUSTICE OF APPEAL I agree: I agree: _________________________________ P MUSONDA ACTING JUSTICE OF APPEAL ________________________________ M CHINHENGO ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV L. A. MOLATI FOR THE RESPONDENTS: ADV C. J. LEPHUTHING with MR M. RASEKOAI 12