Basutoland Congress Party and Another v Qhobela and Another (CIV/APN 410 of 99) [2000] LSCA 43 (17 January 2000)

1 C I V / A P N / 4 1 0 / 99 IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er b e t w e e n: B A S U T O L A ND C O N G R E SS P A R TY N A T I O N AL E X E C U T I VE C O M M I T T EE OF T HE B A S U T O L A ND C O N G R E SS P A R TY 1st A P P L I C A NT 2nd A P P L I C A NT and M O L A PO Q H O B E LA ' M O L O T SI K O L I S A NG 1st 2nd R E S P O N D E NT R E S P O N D E NT Ruling Delivered by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 17th d ay of J a n u a ry 2 0 00 T h e re w e re petitions f r om a great n u m b er of constituencies calling for a special conference. On receipt of these petitions it is said that the First R e s p o n d e nt instructed the S e c o nd R e s p o n d e nt to appoint a Special G e n e r al C o n f e r e n ce for that date of the 25th S e p t e m b er 1999. T h e re m ay h a ve b e en a situation in the papers w h e re the impression is given that neither of the R e s p o n d e n ts could h a ve appointed the conference but in the end we h ad a situation w h e re it is agreed by the side of the First R e s p o n d e nt a nd the S e c o nd Respondent that they caused the conference to be appointed. I am saying it w as agreed at the e nd that both of t h em caused the conference to take place that is w hy there w as that conference. This dispute is about that conference. I have said that other prayers s e em to have fallen off except that o ne of the declaration. T he reason w as that the service of the interim Court O r d er h ad not been opportune e n o u gh to have stopped the Conference. This declaration to me w as not a difficult decision to reach. It w as because in the background w as a rival National Executive C o m m i t t ee w h i ch h ad been elected a nd w h o se validity w as later confirmed by this Court in that dispute in C I V / A P N / 2 0 5 / 99 ( M A K H A K HE A ND O T H E RS vs Q H O B E LA A ND O T H E R S, per R a m o d i b e di J). It w as elected a nd it w as later confirmed by this Court. T he other aspect is that I e n d ed up concluding that it w as in fact the First Respondent a nd the S e c o nd R e s p o n d e nt w ho called the conference. T h ey m ay have been a nd I believe there were overwhelming reasons w hy they did that. T h e re m ay have b e en g o od political reasons but that w as not w h at concerned us here. W h at concerned us w as whether they had the powers to call the conference. We as judges are not overly concerned with w h at these two Counsel h a ve b e en d o i ng in these three d a ys a r g u i ng v e ry strongly h e re in the m o st biased a nd partisan w ay . It is n ot e v en w h at these politicians w o u ld decide or w h at is in their m i n d s. O ur u p p e r m o st c o n c e rn is the highest calling of maintaining l aw a nd o r d er in the justice that we dispense. T h at there m u st be order a c c o r d i ng to l a w. T h is resolution of disputes of this k i nd is n ot very difficult in institutions s u ch as political parties w h i ch are registered w i th their Constitutions in this country. O ur task as it s h o u ld be circumscribed by o ne i m p o r t a nt consideration. It is that w h at we h a ve to avoid is to be seen to be r u n n i ng parties for the party m e m b e rs or for the c o m m i t t e es or getting involved in the internal affairs of those parties. It is with that first u n d e r s t a n d i ng that we are able to interpret the constitutions of the parties against w h at are alleged to be w r o n gs d o ne by m e m b e rs or c o m m i t t e e s. We try as m u ch as possible to avoid b e i ng involved in the administration of parties. T h is m a t t er of registration h as g ot very i m p o r t a nt c o n s e q u e n c es b e c a u se it calls u p on the courts to a l w a ys look for w h e re the p o w er a nd the control in the parties lie a nd if s u ch p o w e rs a nd control disturbed w h e t h er w as it regularly or irregularly d o n e? T h at is w hy the Societies A ct N o . 22 of 1 9 66 will a l w a ys require that a party's constitution a nd Executive C o m m i t t ee be registered. It is b e c a u se the l aw of the c o u n t ry will a l w a ys look for w h e re there is control a nd o n ce an E x e c u t i ve C o m m i t t ee is registered the p r e s u m p t i on is that that is w h e re the p o w er lies a nd w h e re the m a in centre of control is. It is because the constitution is not only about duties a nd obligation but a b o ut division of p o w e r s. T he constitution will substantially prescribe as to w ho will do w h i ch things. W h e t h er o ne call t h em p o w e r s, w h e t h er o ne call t h em obligations or duties but the constitution will ideally tell all about these. T h at is w h at guides the courts in disputes. So that o ne cannot ever at the worst of times say it is a tall order for the C o u rt to c o me to a decision w h e t h er there w as g o od justification w hy there w as a disturbance to the p o w e rs that h a ve b e en granted to an Executive C o m m i t t e e. It is not an overly a difficult task n or w o u ld o ne say it is difficult at all to decide w h e t h er the R e s p o n d e n ts h ad the posers a nd rights to call the Special Conference. I said if o ne is accused of h a v i ng disturbed the p o w e rs that lie in certain people w ho h a ve b e en given p o w er it w as not very difficult because the constitution will tell o ne w h e t h er he has d o ne it regularly or irregularly. A nd that is w h at the C o u rt has got to deal with because w h en o ne speak of a registered constitution the law will look as to w ho the o ne that has control, w ho is it that has got p o w e r. It is because the constitution binds every m e m b er to c o m p ly to its provisions. It has not been difficult in this a r g u m e nt before me to find out if there has b e en a disturbance of p o w e rs given to the S e c o nd Applicant's C o m m i t t e e. I concluded that it w as of a blatant kind. W h a t e v er m ay h a ve b e en the political justification it w as p u re expediency. It w as also b e c a u se the R e s p o n d e n ts themselves c o n c e d ed that there w as a breach. T h ey said there w as a breach. I even suggested w h e t h er repudiation w o u ld n ot be a milder w o r d. T he R e s p o n d e n ts accepted that there h ad b e en a b r e a ch by themselves in appointing that conference. T h ey afterwards attempted to justify w hy they did w h at they did. T h at is w hy in line with their submission this case of N T S O E B EA v N A T I O N AL P A R TY C I V / A P N / 7 5 / 94 w as q u o t ed to m e. In that submission they said there h ad b e en a necessity for w h at the R e s p o n d e n ts did. T he R e s p o n d e nt said that it w as necessary to appoint the conference in v i ew of the petitions by constituencies a nd the recalcitrant attitude of the S e c o nd Applicant. T h ey said if they did n ot do that there w o u ld h a ve b e en prejudice a nd that because of the a b s e n ce of the w o r k i ng c o m m i t t ee a nd the difficulty or intransigence on the part of the N EC m e m b e rs the party w as not able to p e r f o rm its functions. T he R e s p o n d e n ts in justifying their action spoke of things to do with the n e ed to call a conference such as this o ne as h a v i ng b e en a m a t t er of priority. T h at is w hy the t wo R e s p o n d e n ts h ad to do w h at they did as a matter of urgency. B e c a u se the subject of the conference w as an important o ne to resolve the p r o b l e ms of the party. T h at because the party w as in s h a m b l es a nd there w e re p r o b l e ms a nd misunderstandings b e t w e en the Executive C o m m i t t ee m e m b e rs a nd there w as misunderstanding, the relevant provisions of the constitution h ad to be given a fair large a nd liberal construction judging f r om that m a t t er of priority of the petitions w h i ch addressed i m p o r t a nt issues of the party. T h at there w as a n e ed to interpret the actions of the R e s p o n d e n ts as mitigated e v en if they w e re in fact breaches of the constitution as a m a t t er of justice a nd reasonableness. It w as u r g ed that I m u st c o n d o ne the breaches h a v i ng in m i nd this factors that h a ve b e en s p o k en a b o ut in the case of N T S O E B EA (supra). T he b r e a ch should be c o n d o n ed b e c a u se o ne has to look at these factors w h i ch I h a ve just s p o k en a b o ut w h i ch h a ve b e en cited in that case. I speak for this case of N T S O E B EA b e c a u se I k n ow those reasons. It h ad to do with postponing a date of an A n n u al G e n e r al M e e t i n g. T he Executive C o m m i t t ee w as saying that in order to h a ve held a general m e e t i ng the m e m b e r s h ip of the constituency h ad to be culled first. T h at h ad n ot yet b e en d o n e. T he failure to hold the A n n u al G e n e r al M e e t i ng m u st be c o n d o n ed b e c a u se of that reason. H e re it a p p e a rs to be quite different. O ne has first to see w h e t h er the t wo R e s p o n d e n ts could n ot h a ve h ad a v e n u es within the party, if it w as the difficulty of the other m e m b e rs of the N EC be they the majority or minority. If the R e s p o n d e n ts could n ot petition the C o u rt (even if their reasons w e re o v e r w h e l m i n g) this w h at they did did n ot entitle t h em to wresting the p o w er f r om the N EC or to take the l aw into their o wn h a n d s. I repeat that o ne m ay even perhaps think that there w e re o v e r w h e l m i ng political reasons w hy the conference w as called or that there could h a ve b e en or there w as extreme neglect on the part of the N EC or m e m b e rs thereof a nd that the party m ay in fact be in shambles. W h at w as important w as the p o w er that h ad b e en allocated for certain people in terms of the constitution. As C o u rt we are very careful about the latter. T h at is w hy I h a ve given the b a c k g r o u nd about the policy of the law behind the n e ed to register a constitution a nd the n e ed to register on a yearly basis the Executive C o m m i t t e es of registered political parties with the Registrar General. It is intended to indicate w h e re the p o w er a nd the control lies. So that o ne m ay clearly see a situation w h e re there is impatience, intolerance a nd everything that has to do with people w ho no longer understand e a ch other a nd are therefore unprepared to cooperate in a c o m m on endeavour. This I speak about the N EC including the t wo Respondents. H e n ce that e x a m p le of the s w i m m e r. O ne m ay even suspect that this p r o b l em in the party is surely about p o w er playing, sheer p o w er playing. A g a in the e x a m p le of s w i m m e rs w ho are minimally interested in delivering or solving problems for their followers. It m ay even be that situation w h e re once the C o m m i t t ee w as elected it has neglected h ow to resolve problems w h i ch are the welfare of its people. T he t wo e x a m p l es a nd the background c o m m e n ts that I h a ve given are intended to indicate h ow I viewed the need to settle the matter. T he a b o ve brief statement w as a b o ut the m a in reason, on basis of w h i ch I will dispose of this matter by allowing it or dismissing it. T h e re w e re other submissions, a b o ut the standing of m e m b e rs of the N EC to bring the application in the n a me of the N EC n ot in their individual n a m es in addition. A nd w h e t h er the matter w as correctly brought on the basis of urgency without notice on the R e s p o n d e n t s. A nd w h e t h er the N EC h ad correctly resolved to bring the proceedings. T he submission connected with the requirement in the C O M M A N D ER OF L E S O T HO D E F E N CE F O R CE A ND A N O T H ER v M A T E LA C of A ( C I V) N o 3 / 99 to spell out the reasons of urgency in the Certificate of U r g e n c y. T h o se I w o u ld deal fully therewith in my reasons for j u d g m e n t. It suffices to say that in n o ne w o u ld I in my discretion decide for the Respondents. T h is matter of the breach of the constitution remains the m a in reason because of the fact that the constitution is the contract b e t w e en members. See ( M A K H A K HE A ND O T H E RS V Q H O B E LA A ND O T H E RS C I V / A P N / 2 0 5 / 99 P ER R A M O D I B E DI J). It m a de this Court's work easy and called for a simple w ay of resolving this dispute. I would have no reason to disassociate m y s e lf with the j u d g m e n t. I associate m y s e lf fully w i th its reasoning. Essentially my task is to see if there is illegality, w h e t h er there a re b r e a c h es of the parties c o m m on constitution, w h e t h er t he b r e a c h es c an be c o n d o n ed or n ot a nd w h e t h er they are of a serious kind or not. I state the o b v i o us that the b r e a ch of t he parties constitution by the R e s p o n d e nt w as a serious o ne by having on their o wn appointed the conference. T h ey wrested the p o w e rs to appoint such a conference f r om the repository of the p o w er (the N E C ). It w as self-help. It m ay perhaps be that the N EC officials are perceived to be b ad politicians or b ad people by the R e s p o n d e n ts a nd others. B ut that is the p r o b l em of the administration a nd g o v e r n a n ce of the party. It is not a legal problem. T he N EC official deserve like everyone else to be treated fairly in their o wn rights or n o r m al rights. T h e re m u st be legality in a ny a p p r o a ch towards t h em in a ny of their capacities a nd this is m a de easy if there is compliance with the constitution. A nd w h en these are well d o ne they c an generally result in l aw a nd order a nd justice b e t w e en m an a nd m an w h i ch this C o u rt stands for. I w o u ld risk repetition, w h i ch I c a n n ot avoid, to say that the act of registration of constitutions actually lays o p e n, at a certain level, to scrutiny of the activities of the parties, the level being w h e t h er there w as c o m p l i a n ce with the party's constitution w h e re a litigant invites the C o u rt to decide a dispute. T he Courts can only always be worried that they be careful in that they will not be seen to be deciding administrative affairs of a party. In this matter there m ay h a ve b e en that extreme degree of intolerance a nd impatience if the party m e m b e rs or officials do not h a ve e n o u gh discipline that it is their business. B ut they should encroach the rights of other in a w ay that is unconstitutional. T h at a p p e a r ed to be the learned judge's sentiments in M A K H A K HE & O RS v Q H O B E LA & O RS (supra) with w h i ch I align m y s e lf to say that a serious b r e a ch of the provisions of the constitution merits censure. If litigants c o m p l a in that their p o w er h a ve b e en unfairly wrested f r om t h em the C o u rt will look into that. So that in the e nd I allow the prayers that that conference of the 25th S e p t e m b er 1 9 99 be declared null a nd void. W i th regard to costs I m ay m e r e ly say there should be costs on the ordinary scale against the R e s p o n d e n t s. I w as p e r s u a d ed that there m u st h a ve b e en s o m e t h i ng w r o ng that u r g ed for the petitioning of a special conference. It m ay surely be political b ut there is s o m e t h i ng that n e e ds to be ventilated by w ay of a conference that g a ve the petitions a genuineness a b o ut it apart f r om the illegality of the a p p o i n t m e nt of the Special C o n f e r e n ce itself. I n d e ed the R e s p o n d e n ts m ay h a ve b e en overzealous or got into a rush to do unconstitutional things to boot. I m e r e ly settling the decision that costs shall be ordinary costs. T M o n a p a t hi J u d ge 17th January 2 0 00