Seitlheko and Others v Khampepe and Others (CIV/APN 292 of 2011) [2011] LSHC 109 (11 November 2011)

IN THE HIGH COURT OF LESOTHO CIV/APN/292/2011 In the matter between: KALINYANE SEITLHEKO KHOPOTSO TS’EHLO SOKE MOLEFE and SERAME KHAMPEPE KIMETSO MATHABA LETUKA NKOLE NTJA THOOLA NTHEKELENG MOFOLO DANIEL NKOPANE MAQETELO KHETLA MALIAU PITA KHOLOANG MOLOI NATIONAL EXECUTIVE COMMITTEE OF THE NATIONAL INDEPENDENT PARTY NATIONAL INDEPENDENT PARTY 1st Applicant 2nd Applicant 3rd Applicant 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent 8th Respondent 9th Respondent 10th Respondent 11th Respondent THE REGISTRAR GENERAL THE ATTORNEY GENERAL 12th Respondent 13th Respondent Coram: Hon. Hlajoane J Date Heard: 1st August, 2011, 3rd October, 2011. Date of Judgment: 11th November, 2011. Summary Locus standi of applicants – they are card carrying members of the 10th respondent – other members have signed a petition attached – on urgency – fact known for more than two years – non-joinder – parties to be affected by outcome and whose decision challenged to be joined. JUDGMENT [1] The prayers sought in this application are couched in the following terms:- That a rule nisi be issued returnable on the date to be determined by the Honourable Court, calling upon the 1st to 13th respondents to show cause, if any, why, an order in the following terms shall not be made:- (a) That the Rules of this Honourable Court relating to notice and service be dispensed with and the matter be heard on urgent basis. (b) Declaring that the term of office of current members of 10th respondent expired on or about the 13th April, 2009. (c) Declaring that 11th respondent’s special conference held on the 29th January, 2011 for the purpose of considering the amendment of the Party Constitution was unconstitutional and therefore null and void. (d) Declaring the amendment of 11th respondent’s constitution the 1st March, 2011 registered under No.84/39 on unconstitutional and therefore null and void. (e) Directing 2nd to 11th respondents to prepare for and hold 11th respondent’s National Conference not later than 28 days of the final order hereof. Interdicting and restraining 2nd (f) to 8th respondents from holding themselves out as substantive office bearers of the 10th respondent other than the latter’s interim committee (g) members. Interdicting and restraining 2nd respondent from transacting any business of 11th respondent other than matters the holding of 10th the preparation for incidental to 9th to respondent’s National Conference referred to at 1 (e) above. (h) Directing the respondents to pay costs of this application only in the event of contesting same. (i) Directing that applicants be granted further and / or alternative relief. That prayer 1 (a) operate with immediate effect as an interim interdict [2] There were some points of law raised by the respondents’ counsel. But before dealing with those points of law applicants’ counsel intimated that they have decided to abandon prayers © and (d) of the notice of motion. [3] The respondents have raised some points in limine in their papers. They are: - - - Locus standi Lack of urgency Non – joinder [4] Locus Standi It has been the respondents’ case that the applicants have failed to show that they have direct and substantial interest in the matter. That the mere fact that they are members of the association would not mean they have no duty to prove a direct and substantial interest. [5] It was at the replying stage that the 1st and 2nd applicant attached copies of renewal of their membership, for the current year. As for the 3rd applicant he has pointed out that he has renewed his membership but has misplace his card. [6] The respondents went further on this point by showing that the mere fact that the applicants have an interest does not mean that every member had a direct and substantial legal interest to sustain the requisite locus standi. That a party has to have a direct and substantial interest peculiar to himself. [7] Respondents further showed that if a party brings an application based on the interest he has in common with the rest of his co- members in the association, he would have to join the other members as well. [8] Mofolo J in Mokhotlong Constitutency Committee and 6 others v Pakalitha Mosisili and 30 Others1 had this to say that; “This Court could never subscribe to the proposition that because individual members have surrendered their powers to the Party congress or conference they are thereby zombies and mummies never to raise their voices against unconstitutional acts of the congress or conference.” 1 1991 – 96 LLR 671 at 712 [9] The Court said this after referring to an unreported case by my brother Monapathi J in Leonard Ntsoebia v Basotho National Party2 where it was said; “All members are bound by the decision of the majority at a properly convened meeting, but any individual member may act to protect the interest belonging to all, in his personal capacity.” On the basis of the authorities shown above, since the applicants are card carrying members of the party they have locus standi. [10] I distinguish this case from the case referred to by the respondents, Marumo and Others v National Executive Committee and 2 Others3, delivered by my sister Guni J on the 9th September 2011. In that case the Court dismissed an application filed by three card carrying members of the Lesotho Congress for Democracy (LCD). The Court in dismissing the application said; “They cannot call for what is in every member’s interest without involving every member. On their own they have no locus standi.” [11] There has been a petition attached to the founding papers, Annexure ‘S. T. M3’which showed that other members from different constitutiencies were of the same view with the present applicants. The 1st, 4th and 5th respondents have confirmed that 2 CIV/APN/75/94 3 CIV/APN/213/2011 there has been such a petition which was presented to the 10th respondent. This was a clear indication that it was not only the applicants who wanted the conference to be held. [12] Urgency Respondents contended that the cause of complaint herein was nothing new. Those applicants were well aware that the last conference was held on the 12th April, 2008. Also those applicants were well aware that the respondents were continuing to transact the business of the party and that on the 29th January 2011 a special conference of the party was held. [13] The respondents further pointed out that applicants have been aware of the outcome of that special conference and consequent registration of the Amended Constitution of the party on the 1st March, 2011. Respondents have supported their argument with the following cases where the Court of Appeal has expressed concern that the procedure of urgent applications is abused; - Mahlakeng & 55 Others v Southern Sky Ltd and 7 Others4 - Lutaru v NUL5 - Commander LDF and Another v Matela6 . 4 2000 – 2004 LAC 742 5 1999 – 2000 LLR & LB 52 [14] The respondents have not denied that they acted contrary to the provisions of the Constitution by not holding the conference to elect the new committee when the term of the committee expired in April 2008. They are only advancing reasons why that has been so. [15] But on the authority of the decisions shown above and many others the delay has been just too long. The applicants have relied on the case of Mona and Another v Khoarai and Another7 (unreported) as authority for the proposition that a continuing injury suffices to contribute a ground for urgency. [16] That may well be so but where there has been unexplained inordinate delay a party cannot be allowed to take his time and when it suits him come and cry urgency. Even the petition is dated 27th March, 2011. [17] The term of the committee expired in April 2008 and the applicants have been keeping quiet since that time only to come and cry urgency in 2011. 6 1999 – 2000 LLR & LB 13 7 CIV/APN/258/99 [18] On this ground alone the application stands to be dismissed. [19] Non – Joinder The respondents here are saying the applicants have also failed to join the delegates who were present as the constitution was amended. But because the respondents have abandoned prayers 1 © and (d) of the notice of motion there would be no need to proceed with this point. [20] I have allowed both points of law and the merits to be argued at the same time. I have already decided that the applicants have locus standi. [21] I have also decided that the matter is not urgent and this goes to the roots of this application. [22] On that score the rule is discharged. On the question of costs, since this a matter for members of the same political party and as such are like family members I will make no order as to costs, but that each party to bear its own costs. [23] Though I have not gone into the merits of this application, but I am going to say something by way of advice, that political parties must learn to always abide by the conditions of their constitutions. A. M. HLAJOANE JUDGE For Applicants: Mr Mda For Respondents: Mr Shale