Lehohla v National Executive Committee of the Lesotho Congress for Democracy and Others (CIV/APN 160 of 98) [1997] LSHC 44 (6 May 1997)

CIV/APN/160/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between L E S AO L E H O H LA A P P L I C A NT and 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 L E S O T HO C O N G R E SS F OR D E M O C R A CY 1 ST R E S P O N D E NT L E S O T HO C O N G R E SS F OR D E M O C R A CY 2 ND R E S P O N D E NT I N D E P E N D E NT E L E C T O R AL C O M M I S S I ON 3 RD R E S P O N D E NT M O L A H L E HI L E T L O T LO 4 TH R E S P O N D E NT T HE A T T O R N EY G E N E R AL N . O. 5 TH 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 6th d ay of M a y, 1 9 98 T h is c a se c o n c e r ns d e m o c r a cy or lack thereof. I s h o u ld state at the outset that for my part I h a ve d r a wn c o m f o rt f r om the i m p r e s s i ve n a me of S e c o nd R e s p o n d e nt - " L e s o t ho C o n g r e ss for D e m o c r a c y ". I n d e ed I o b s e r ve w i th k e en interest that in the p r e a m b le to its Constitution the S e c o nd R e s p o n d e nt h as set out to provide "education" for true d e m o c r a cy to the entire B a s o t ho nation as a w h o l e. F or g o od m e a s u re S e c o nd R e s p o n d e nt h as set out in Section 2 of its Constitution that its a i ms a nd objectives shall be to w o rk for d e m o c r a cy in " L e s o t h o, Africa a nd the w h o le w o r l d" with truth, justice a nd peace as the c o m er stones of such d e m o c r a c y. N o b le aspirations indeed! It remains therefore to see whether the S e c o nd R e s p o n d e nt has practised w h at it advocates for in its Constitution. It is perhaps, rather surprising that the challenge to S e c o nd Respondent's claim to d e m o c r a cy in the instant matter should c o me from no other person than S e c o nd Respondent's o wn party m e m b er w h om I shall hereinafter refer to as the Applicant. It should be r e m e m b e r ed for that matter that S e c o nd R e s p o n d e nt is the ruling party in the country whether rightly or wrongly. N ow for the story of the litigation. On the 19th April, 1 9 98 the Applicant filed a Notice of M o t i on with this Court for an order c o u c h ed in the following terms:- " 1. Dispensing with the Rules of Court concerning periods and notices and service of process on account of urgency of this matter. 2. A R u le Nisi issue returnable on the date a nd time to be determined by the a b o ve H o n o u r a b le Court calling u p on the R e s p o n d e n ts to s h ow cause (if a n y) w hy the following order shall not be m a de final, to wit:- a) T he decision of first R e s p o n d e nt purporting to nullify Applicant's election and/or to i m p o se the fourth Respondent as the second Respondent's candidate in the Mafeteng N u m b er 55 Constituency for the 1 9 98 general elections shall not be declared null a nd v o id on a c c o u nt of such decision being unlawful, irregular, inconstitutional (sic) as well as fraught w i th procedural a nd substantial injustice a nd impropriety; b) T he first R e s p o n d e nt shall not be restrained a nd interdicted f r om submitting the n a me of fourth R e s p o n d e nt as a candidate of s e c o nd R e s p o n d e nt in the constituency of M a f e t e ng N u m b er 55 to the third R e s p o n d e nt p e n d i ng the finalisation hereof; c) T he third R e s p o n d e nt shall not be restrained a nd interdicted f r om nominating and/or confirming the fourth R e s p o n d e nt as a candidate of the s e c o nd R e s p o n d e nt in the constituency of M a f e t e ng N u m b er 55 p e n d i ng the finalisation hereof; d) T he Applicant shall not be declared the lawful a nd duly elected candidate of s e c o nd R e s p o n d e nt in the constituency of M a f e t e ng N u m b er 55 for the f o r t h c o m i ng general elections; e) T he first, s e c o nd a nd fourth R e s p o n d e n ts shall not be ordered to p ay costs hereof; f) T he Applicant shall not be granted further and/or alternative relief. 3. T H AT P R A Y E RS 1, 2 ( b) a nd © operate w i th i m m e d i a te effect as an Interim O r d er p e n d i ng the finalisation hereof." T he matter initially c a me before my B r o t h er K h e o la C. J. w ho granted the R u le Nisi as p r a y ed on the s a me d ay n a m e ly the 19th April 1 9 9 8. T he matter is o p p o s ed by First, S e c o nd a nd F o u r th R e s p o n d e n ts only. It is r e a s o n a b le to a s s u me therefore that the I n d e p e n d e nt Electoral C o m m i s s i on (3rd R e s p o n d e n t) a nd the Attorney G e n e r al (5th R e s p o n d e n t) will a b i de by the j u d g m e nt of this C o u r t. It is n ot seriously disputed that on the 16th April, 1 9 98 a m e e t i ng or c o n f e r e n ce (it d o es not matter w h i c h) of the M a f e t e ng C o n s t i t u e n cy N o . 55 t o ok p l a ce at M a f e t e ng w i th a v i ew to electing a candidate w ho w o u ld represent the S e c o nd R e s p o n d e nt at the f o r t h c o m i ng G e n e r al Elections s c h e d u l ed for the 2 3 rd M ay 1 9 9 8. I n d e ed n o m i n a t i on d ay w as by then just a r o u nd the c o m er n a m e ly the 2 0 th April, 1 9 9 8. It is again c o m m on c a u se that the m e e t i ng in question p r o c e e d ed again on the 17th April 1 9 9 8. P o i n ts of D i s p u t e. T h e re is a serious point of dispute as to w ho chaired the m e e t i ng in question. T he Applicant's version is that the m e e t i ng w as chaired by the C h a i r m an of the Constituency in question n a m e ly o ne E t s a ng M o e n o. T he R e s p o n d e n ts on the other h a nd claim that the m e e t i ng w as chaired by o ne T h e be M o t e b a n g. A g a in there is a dispute w h e t h er there w as a disorder at the m e e t i ng of the 17th April 1 9 98 a nd if so w h e t h er such disorder did result in the closure of the m e e t i ng p er se. O n ce m o re there is a serious dispute of fact as to w h e t h er or not the m e e t i ng of the 17th April, 1 9 98 w as properly closed or w h e t h er it w as lawfully a d j o u r n ed to the 18th April, 1 9 9 8. T he Applicant's version supports the latter v i ew while the R e s p o n d e n ts are a d a m a nt that the m e e t i ng w as a b a n d o n ed and/or closed d ue to disorder. A c c o r d i ng to t h em the meeting w as never lawfully r e c o n v e n ed on the 18th April 1 9 98 or at all. T he Applicant insists that the m e e t i ng h a v i ng b e en lawfully adjourned on 17th April 1 9 98 it w as reconvened again on the 18th April 1 9 98 w h en he w as u n a n i m o u s ly elected. I should p e r h a ps m e n t i on at this stage that the R e s p o n d e n ts do not seriously dispute that the A p p l i c a nt w as so elected but they c o n t e nd that since the m e e t i ng of the 18th April, 1 9 98 at w h i ch Applicant w as elected w as "unconstitutionally" held, s u ch election is not binding on the First a nd S e c o nd R e s p o n d e n t s. R u le 8 (14) of the H i gh C o u rt R u l es In v i ew of the points of dispute as outlined a b o ve a nd acting in terms of R u le 8 (14) of the H i gh Court R u l es I directed that oral evidence be heard on the three (3) issues set out a b o ve a nd to that e nd I ordered that the d e p o n e n ts to these issues a p p e ar personally to be e x a m i n ed a nd cross e x a m i n ed as witnesses. 1 should mention that I did this in the interests of justice a nd in order to get to the truth in as m u ch as it w as not possible to decide w h i ch typewriter w as telling the truth a nd w h i ch o ne lying on the printed material before m e. T he evidence of the Applicant M r. L e s ao L e h o h la w ho g a ve s w o rn e v i d e n ce as P W1 w as briefly to the following effect: He attended the meeting of the Mafeteng Constituency N o . 55 from the 16th April 1 9 98 right through to the 18th April 1998 w h en he w as elected as S e c o nd Respondent's candidate for the forthcoming General Elections. Those w ho attended the meeting on the 16th April 1 9 98 w e re the Applicant himself, a delegation from the National Executive C o m m i t t ee comprising of M r. M a o p e, M r. Motete and M r. M o l o po as well as m e m b e rs of Mafeteng Constituency N o . 55 C o m m i t t ee together with the Constituency branches. There w e re five such branches in attendance namely - (1) T he Central B r a n ch (2) K o t o a n y a ne B r a n ch (3) M a b o l o ka B r a n ch (4) Lifelekoaneng Branch and (5) Controlled Branch. This meeting started off with discussions b e t w e en the Constituency and the delegation from the National Executive C o m m i t t ee from Headquarters. This w as in fact "table discussions" w h i ch w e re chaired by the leader of the delegation from the Headquarters M r. M a o p e. It w as not part of the conference. Indeed the Applicant is unchallenged in this respect. T he conference w as then adjourned to the 17th April 1998 w h en it resumed under the chairmanship of M r. Etsang M o e no the chairman of the Mafeteng Constituency N o. 55 Committee. T he witness is a d a m a nt that other than M r. M o e no no other person a s s u m ed the chairmanship on the 17th April, 1998. M o r n i ng discussions w e nt on on the 17th April, 1 9 98 until delegates w e re led into the c o n f e r e n ce r o om w h e re t h ey raised questions f r om the floor still u n d er the c h a i r m a n s h ip of M r. M o e n o. M e a n w h i le the H e a d q u a r t e rs delegation " h ad said by 12 o ' c l o ck t h ey w o u ld leave - they w e re h a rd p r e s s ed for t i m e ." T he discussions h o w e v er c o n t i n u ed until the H e a d q u a r t e rs delegation left together w i th the Central B r a n ch at a b o ut 2 . 3 0 -3 p . m. T he m e e t i ng c o n t i n u ed e v en after the departure of the delegates m e n t i o n ed a b o v e. It w as still u n d er the c h a i r m a n s h ip of M r. M o e n o. P W1 d e n i es that M r. M a o pe closed the m e e t i ng b e f o re the H e a d q u a r t e rs delegation left. He denies that M r. T h e be M o t e b a ng chaired the m e e t i ng of the 17th A p r il 1 9 98 n or did he close it. He c o n t e n ds that in t e r ms of the S e c o nd R e s p o n d e n t 's constitution t h ey w e re entitled to c o n t i n ue w i th the m e e t i ng in that a m i n i m um of three (3) B r a n c h es f o rm a q u o r u m. F o ur B r a n c h es r e m a i n ed in attendance. T he c o n f e r e n ce d e c i d ed to continue w i th the m e e t i ng the n e xt d ay the 18th April, 1 9 9 8. T he w i t n e ss is a d a m a nt that the m e e t i ng of the 17th April 1 9 98 w as closed by the c h a i r m an M r. M o e n o. On the 18th April 1 9 98 the four ( 4) r e m a i n i ng B r a n c h es c o n t i n u ed the m e e t i ng u n d er the chairmanship of M r. M o e n o. An elections c o m m i t t ee w as elected a nd it c o n d u c t ed elections for a c a n d i d a te for M a f e t e ng C o n s t i t u e n cy N o . 5 5. T he w i t n e ss w as elected as the C o n s t i t u e n cy candidate. It w as still u n d er the c h a i r m a n s h ip of M r. M o e n o. P W1 is a d a m a nt that the H e a d q u a r t e rs delegation's brief w as to oversee the elections a nd not to c o n d u ct the m e e t i n g. It is his e v i d e n ce that the m o od of the participants w as o ne of "anticipation, h a p p i n e ss a nd s o n g s ." I n d e ed I o b s e r ve that he is a g a in u n c h a l l e n g ed in this respect. It is further P W 1 's e v i d e n ce that he w o u ld n ot d e s c r i be the m o od of the delegates as r o w d y. T h ey w e re certainly n ot unruly. T h e re w as o c c a s i o n al n o i se u n d er control " w h i ch is n o r m al in a political d i s c u s s i o n ." O n ce m o re he is u n c h a l l e n g ed on this version. He d e n i es that the m e e t i ng h ad d e g e n e r a t ed into a n a r c h y, a d d i ng " up a nd until the delegation f r om M a s e ru left t he m e e t i ng w as still u n d er control." U n d er cross-examination PW1 a g r e ed w i th M r. M a t s au for the R e s p o n d e n ts that the sole p u r p o se of the m e e t i ng ( c o n f e r e n c e) w as to elect a c a n d i d a te to r e p r e s e nt the party in the N a t i o n al A s s e m b ly Elections. A f t er the H e a d q u a r t e rs delegation h ad left the m e e t i ng d i s c u s s ed the d e p a r t u re of the d e l e g a t es in q u e s t i on a nd w h at the m e e t i ng h ad to resolve. It w as t h en finally a g r e ed that the election of a c a n d i d a te w o u ld p r o c e ed on the 18th April 1 9 9 8. P W1 readily a d m i t t ed that " p a r t" of the p r o b l em that e n g a g ed the attention of the m e e t i ng w as participation of the Central B r a n ch He d e n i ed the suggestion that the election did n ot take p l a ce on the 17th April 1 9 98 b e c a u se of the " h a m p e r i ng b e c a u se p e o p le w e re n ot satisfied w i th M i ss M o s h a b e s h a ." A c c o r d i ng to P W1 p e o p le w e re entitled to a sk q u e s t i o ns as this w as their d e m o c r a t ic right. T h ey could n ot be r u s h ed into an election w i t h o ut first giving m em an opportunity to air their v i e w s. He feels it is "ironic" that elections m ay n ot t a ke p l a ce b e c a u se of q u e s t i o ns a d d i ng "the M a s e ru p e o p le ( n a m e ly the H e a d q u a r t e rs delegation) said t h ey w e re h a rd p r e s s ed for t i m e. O n ce m o re he is unchallenged on this version that the H e a d q u a r t e rs delegation w e re indeed so impatient. In my v i ew probabilities are that this w as the r e a s on w hy they left the m e e t i ng before its conclusion. It is P W 1 's evidence that the role of the National E x e c u t i ve C o m m i t t ee of the S e c o nd R e s p o n d e nt is m e r e ly to oversee the election. T he constitution is h o w e v er not clear. T he witness g a ve the C o u rt an e x a m p le of a situation w h e r e by the N a t i o n al Executive C o m m i t t ee did not attend an election of a candidate - that is S e m e na Constituency. This w as in a n s w er to the following question by M r. M a t s a u: " Q. Isn't it so that elections of this k i nd are supervised by N E C? A. I put to counsel that in the C o n s t i t u e n cy of S e m e na they w e re not there a nd the election stood." I consider that this w as direct u n c h a l l e n g ed e v i d e n ce w h i ch serves to belie the R e s p o n d e n t s' claim that elections of this k i nd are supervised by N E C. N or do they necessarily h a ve to be physically present at constituency elections. C o n v e r s e ly I hold that there is nothing in S e c o nd R e s p o n d e n t 's constitution that precludes or invalidates the holding of an election at constituency level in the a b s e n ce of the National Executive C o m m i t t ee m e m b e r s. Indeed I observe that n o w h e re in A n n e x t u re " L M 4" ( w h i ch is a letter dated 15/4/98 addressed by the National Executive C o m m i t t ee to M a f e t e ng Constituency N o . 5 5) is it suggested that the National E x e c u t i ve C o m m i t t ee is going to c o n d u ct the elections itself. I should m e n t i on that I w a t c h ed P W1 as he g a ve evidence. He w as very impressive indeed. He gave evidence in a clear straightforward m a n n er and always gave me the impression that he w as all out to tell the truth. I believe his version of events. He readily admitted that the nature of the debate at the meeting in question "did get very hot" as happens in political meetings - but h o w e v er it w as "very k e en a nd constructive. It n e e d ed answers." He w as asked the following questions by M r. M a t s a u: " Q. W h at I am putting to y ou is that according to the affidavit of Motete the meeting of the 17th also deteriorated into disorder." A That is not so. M r. M o t e te and other Ministers of G o v e r n m e nt have security. We w e re safe. There w e re m e m b e rs of N S S, the police." Indeed he is once m o re unchallenged in this respect a nd I accordingly m a ke the finding that the delegates w e re safe at the meeting a nd that therefore there w as no n e ed at all to discontinue the meeting. T he s w o rn evidence of P W2 Etsang M o e no w as m u ch shorter. He is chairman of the M a f e t e ng Constituency N o. 55. He corroborates P W1 in all material respects relating to the meeting in question. He w as chairman thereof from the 16th April 1998 to the 18th April 1998. M r. T h e be M o t e b a ng never chaired any of the meetings. It is P W 2 's evidence that he is the one w ho closed the meeting of the 17th April 1 9 98 as chairman. T he business for w h i ch the meeting w as held w as not completed on that day. A r o u nd 3 o'clock the Headquarters delegation " w a l k ed out." No reason w as given. T h o se w ho r e m a i n ed behind n a m e ly four B r a n c h es h o p ed that the Headquarters delegation w o u ld c o me b a ck but they did not. T he understanding of the remaining delegates w as that the m e e t i ng should p r o c e ed a nd so it did. It w as chaired by him. T he m e e t i ng p r o c e e d ed until the evening w h en he adjourned it to the following d ay the 18th April 1998. He r e s u m ed the chairmanship on this latter date a nd the Applicant w as elected as the constituency candidate. P W2 is a d a m a nt that the m e e t i ng of the 17th April 1 9 98 w as not closed by M r. M a o pe but by himself. He describes the m e e t i ng as "a well c o n d u c t ed meeting." T h e re w e re questions f r om the floor a nd they w e re being a n s w e r e d. This t o ok s o me time. He denies that the meeting of the 17th April, 1 9 98 degenerated. He w as in control of the meeting e v en w h en t e m p e rs w e re high. He denies that there w as terrible noise in the C o n f e r e n ce hall. U n d er cross examination f r om M r. M a t s au P W2 m a de a slight contradiction in that at first he said he chaired the table discussions but later retracted f r om this v i ew point. A p a rt f r om this m i n or discrepancy he r e m a i n ed u n s h a k en in cross examination a nd I h a ve no reason to disbelieve h i m. He corroborates P W1 that the National Executive C o m m i t t ee merely acts as observer a nd d o es not c o n d u ct elections. D W1 Lira M o t e te gave evidence under oath w h i ch c an briefly be s u m m a r i s ed as follows: On the 16th April 1 9 98 they spent the w h o le d ay at M a f e t e ng Constituency N o. 5 5. T h ey sat with the constituency c o m m i t t ee together w i th the Central C o m m i t t ee u n d er the supervision of the National E x e c u t i ve C o m m i t t e e. T h ey " w o r k ed to resolve grievances on both sides until evening." On the 17th April 1 9 98 they r e s u m ed duty with the s a me parties as on the p r e v i o us day. T h ey p r o c e e d ed to G e n e r al C o n f e r e n c e. T h ey inspected the list of villages in order to ensure correct delegation. Finally an a g r e e m e nt w as reached on the credentials of the delegation. A c c o r d i ng to D W1 " we a s k ed the Constituency C o m m i t t ee then to supply us with voting papers." T he delegates w e re then called into the C o n f e r e n ce hall. T he position of chairmanship w as a s s u m ed by T h e be M o t e b a n g. As they w e re a b o ut to issue ballot papers to the delegates s o me of the latter raised up their h a n ds to ask s o me questions. It w as at this time w h en questions w e re being a s k ed that a lot of noise w as h e a rd next door. It w as signing. T he noise w as very high a nd the building m a de up of corrugated iron w as struck a nd the noise c a me inside. T he witness a d ds " we a s k ed the c h a i r m an of the constituency c o m m i t t ee n a m e ly M o e no to assist to stop the noise. We received no help f r om M o e n o ." A c c o r d i ng to D W1 M o e no continued replying to those p e o p le outside " a nd he said he w as going to listen to these people only a nd that he w as going to listen to w h a t e v er they tell h im to d o ." W h i le these people w e re still m a k i ng noise they p u s h ed o ne another until they entered the conference hall. S o me of the people asking questions tried to stop t h em but they continued m a k i ng noise. A c c o r d i ng to D W1 " we a p p r o a c h ed o ur leader M r. M a o pe to consider the situation that prevented us f r om w o r k i n g. A nd we agreed that N t a te M a o pe should close d o wn the m e e t i ng a nd that we should report to the N E C ." M r. M a o pe then " a n n o u n c ed that the m e e t i ng w as closed a nd we returned to M a s e r u ." U n d er cross examination by A d v. P h a f a ne for the Applicant D W1 c o n c e d ed that the functions of a constituency chairperson includes that of chairing constituency meetings. He further c o n c e d es that the m e e t i ng of the 17th April 1 9 98 w as not an annual conference of S e c o nd R e s p o n d e n t. He insists h o w e v er that the m e e t i ng of the 17th April w as chaired by M r. M o t e b a n g. DW1 insists that the procedure of his party is that it c o n d u c ts elections at constituency level. Pressed on w h e t h er this w as a constitutional provision or just a practice his reply w as "it is a practice," a d d i ng "It is not written like that in the constitution but I say it is a practice." I n d e ed he w as a d a m a nt that it w as a practice of long standing. W h en it w as put to h im h o w e v er that S e c o nd R e s p o n d e nt w as only f o r m ed in 1 9 97 his a n s w er w as startling to say the least. He insisted that his party w as f o r m ed in 1 9 5 2. Pressed further he finally c o n c e d ed that it w as f o r m ed in 1997. I h a ve no doubt that DW1 w as not prepared to tell the C o u rt the truth. He g a ve me the impression that he w as all out to mislead the Court. W o r se still I f o u nd DW1 to be v e ry evasive as a result of w h i ch I often h ad to w a rn h im to a n s w er counsel's questions directly. Significantly DW1 d o es not dispute the Applicant's version that the National Executive C o m m i t t ee did not c o n d u ct or participate in the election of a candidate at S e m e na Constituency. In the circumstances I h a ve no hesitation in rejecting the allegation that the National Executive C o m m i t t ee c o n d u c ts elections of candidates at constituency level. Yielding to the pressure of cross e x a m i n a t i on by A d v. P h a f a ne DW1 finally h ad to c o n c e de that i n d e ed it w as M r. M o e no w ho called the m e e t i ng to order a nd introduced the delegation to the house. T he H e a d q u a r t e rs delegation w as " w o r k i ng through the Constituency C o m m i t t e e ." W h en D W1 b e c a me evasive o n ce m o re he w e nt s o m e t h i ng like this: " T he m e e t i ng w as chaired by us acting t h r o u gh the C o n s t i t u e n cy C o m m i t t e e ." He w as inevitably asked: " Q: In this regard y ou w e re m a k i ng u se of the c h a i r m a n? A: Y e s. Court: W h i ch c h a i r m a n? A: M r. M o e no the c h a i r m a n ." Indeed D W1 a d d ed quite significantly " y es the functionary w as M r. M o e n o, only that he w as carrying out o ur instructions." In my v i ew this corroborates P W1 a nd P W2 that the c h a i r m an of the meetings in question w as M r. M o e no himself a nd I so find. N or w as this the e nd of D W 1 's b o u ts of evasiveness in cross examination. He w as again a s k ed by A d v. P h a f a n e: " Q: I am told on 17th April 1 9 98 y ou h ad fixed a d e ad line - s o m e t h i ng m u st h a ve h a p p e n ed a nd that is t he election. A: Yes." Y et w h en his attention w as d r a wn to the fact that in his affidavit he h ad d e n i ed this D W1 i m m e d i a t e ly retracted a nd d e n i ed that a d e ad line h ad b e en set. T h is C o u rt is n ot i m p r e s s ed w i th the credibility of this w i t n e s s. He w as b a d ly s h a k en in cross e x a m i n a t i o n. I should also m e n t i on that it w as interesting to h e ar the e v i d e n ce of D W1 that in their a p p a r e nt haste to l e a ve the m e e t i ng the H e a d q u a r t e rs delegation left the ballot c a r ds lying on the table. In my v i ew this clearly s u g g e s ts that t h ey h ad n ot g o ne there to c o n d u ct the election. T h ey left the ballot cards b e h i nd in o r d er that the election m i g ht p r o c e ed in their a b s e n c e. I believe the e v i d e n ce that t h ey h ad set a d e ad line a nd w h en the m e e t i ng b e c a me protracted b e y o nd the d e ad line as a result of the delegates exercising their d e m o c r a t ic right to a sk q u e s t i o ns a nd d e b a te issues t h ey b e c a me impatient a nd left u n c e r e m o n i o u s l y. H a v i ng s e en a nd h e a rd the witnesses I believe the e v i d e n ce of P W1 a nd P W2 a nd I am satisfied that there w as no disorder at the m e e t i ng of the 1 7 th A p r il 1 9 98 a nd that the m e e t i ng w as n ot c l o s ed as a result of disorder. I disbelieve D W1 M r. Lira M o t e te in this regard. I believe P W 1 's e v i d e n ce that t he d e l e g a t es w e re safe. T h at b e i ng the c a se I am satisfied that there w as no justifiable r e a s on to close the m e e t i n g. T h is is p e r h a ps an appropriate stage to turn to A p p l i c a n t 's c h a l l e n ge to the affidavit of M r. Lira M o t e te on the g r o u nd that he w as n ot authorised to m a ke it. It is i n d e ed c o m m on c a u se that M r. Lira M o t e te relied u p on the R e s o l u t i on of the 20th April 1 9 98 "as evidence that I am duly authorised to d e p o se to this affidavit." T h at resolution h o w e v er d o es not authorise h im a n y w h e r e; it reads: "Extract of M i n u t es of the Executive C o m m i t t ee of the L e s o t ho C o n g r e ss for D e m o c r a cy H e ld at M a s e ru on the 20th D ay of April, 1 9 98 It w as R e s o l v ed that: 1. T he party should defend the action brought against it in the H i gh C o u rt of L e s o t ho u n d er C I V / A P N / 1 6 0 / 98 by L e s ao L e h o h l a; 2. M r. S h a k h a ne M o k h e h le be a nd is h e r e by authorised to sign all d o c u m e n ts necessary to bring the aforegoing resolution into effect. S i g n ed Secretary G e n e r al 2 0 / 4 / 9 8" In fairness to M r. M a t s au for the R e s p o n d e n ts he c o n c e d e d, a nd rightly so in my v i e w, that this resolution d o es not authorise M r. Lira M o t e te to file an affidavit in the matter. S ee Pretoria City C o u n c il v M e e r l u st Investments Ltd. 1 9 62 (2) S. A. 3 21 w h e re it w as held that in the c a se of an artificial p e r s on the o n us is on the p e r s on claiming authorisation to place before the C o u rt an appropriately w o r d ed resolution of the artificial person in question. S ee also F e d e r al C o n v e n t i on of N a m i b ia v S p e a k er N a t i o n al A s s e m b ly of N a m i b ia a nd others 1 9 94 (1) S. A. 1 77 AT 1 9 6. F a c ed w i th this p r o b l em M r. M a t s au then m a de an application f r om the b ar to a m e nd the Resolution. N ot surprisingly this application w as strenuously o p p o s ed a nd after h e a r i ng submissions f r om b o th counsel I dismissed the application on the f o l l o w i ng g r o u n d s: ( 1) that in effect w h at the intended a m e n d m e nt w as s e e k i ng to do w as to indirectly a m e nd the affidavit of M r. Lira M o t e te w h i ch in l aw he c o u ld n ot d o. S ee S e m a k a l e ng K h o n s o a n v a ne a nd A n o t h er v T he Director of Prisons a nd O t h e rs C I V / A P N / 2 2 9 / 93 (unreported). ( 2) the application w e nt at the heart of A p p l i c a n t 's objection. ( 3) the application w as n ot properly m o t i v a t ed by a N o t i ce of M o t i on s u p p o r t ed by an affidavit to explain a nd justify the a m e n d m e n t. I n d e ed authorities are legion that an application for an a m e n d m e nt is n ot just there for the taking It m u st be fully explained a nd justified. T he c o n v e n i e n ce of the C o u rt as well as the n e ed for finality m u st also be c o n s i d e r e d. ( T he list is n ot exhaustive). It should be b o r ne in m i nd h o w e v er that a l t h o u gh M r. M o t e te h as not b e en authorised to file an affidavit in this matter, the Court did allow h im to give viva v o ce evidence in the interests of justice. I h a ve h o w e v er approached his evidence with d ue caution to the extent that he is an uninvited witness in the matter. It is no doubt important to bear in m i nd that the meeting in question w as not a m e e t i ng of the National Executive C o m m i t t e e. It w as a nd always remained a meeting of the Mafeteng Constituency N o. 55 throughout. I h a ve no reason to doubt this version. It is perhaps appropriate at this stage to refer to relevant sections of the Constitution of S e c o nd Respondent. Firstly I observe that n o w h e re d o es the constitution prescribe w ho should chair Constituency meetings w h e re m e m b e rs of the National Executive C o m m i t t ee are in attendance. Secondly a nd m o re importantly the Constitution does not prohibit the chairman of a Constituency C o m m i t t ee to chair such meetings. Section 12(d) of the Constitution provides that a m i n i m um of three (3) branches shall form a q u o r um for a meeting of any Constituency C o m m i t t ee under the approved Constituency Committee. A proper reading of this section has left me in no d o u bt that a meeting of a Constituency C o m m i t t ee is in terms of the constitution chaired by the chairman of the Constituency C o m m i t t ee in question. I am indeed fortified in the v i ew that I take of the matter by Section 21 (q) which, in my judgment leaves the National Executive C o m m i t t ee in the position of a w a t c h d og only in the election of a party candidate at a Constituency meeting. In all probabilities therefore I am satisfied e v en quite apart f r om the evidence of P W1 w h i ch I believe that the meetings in question resulting in the election of the Applicant w e re chaired by the chairman of M a f e t e ng Constituency N o . 55 C o m m i t t ee n a m e ly Etsang M o e n o. Regarding the second point of dispute I have already held that there w as no disorder at the meeting of the 17th April 1 9 98 and that the meeting w as not closed as a result of any disorder. I turn then to determine the third point of dispute namely: w as the meeting of 17th April, 1 9 98 properly closed or not or w as it lawfully adjourned to 18th April, 1 9 98 w h en elections w e re held? It will be recalled that R e s p o n d e n t s' version is to the effect that the meeting of the 17th April, 1 9 98 w as closed d ue to disorder. In his opposing affidavit M r. Lira M o t e te m a k es a startling statement that the meeting w as actually closed by M r, M a o pe (see paragraph 11). Indeed he avers that during the course of the meeting " M r. M a o pe w ho w as the h e ad of the delegation of the National Executive C o m m i t t ee stood up and a n n o u n c ed that as a result of this unruliness the meeting could not proceed and it w as therefore closed." I cannot understand h ow a n y o n e, be it a m e m b er of the National Executive C o m m i t t ee or not, could ever close a lawful meeting without any recourse to the chairman. I cannot but imagine that the chairman w o u ld simply ignore h im and proceed with the meeting. This is exactly w h at h a p p e n ed here. T he delegation of the National Executive C o m m i t t ee departed from the meeting. I think this w as a tactical blunder w h i ch they m ay yet rue. It w as in my v i ew a clear abdication of their duty as a w a t c h d og in the election. I find that this case h as a striking similarity to the c a se of J o hn v R e es 1 9 69 (2) A LL ER 2 7 4. Referring to this case My Brother M a q u tu J. in N t su M o k h e h le v M o l a po O h o b e la & 15 Others C I V / A P N / 7 5 . 97 (unreported) stated the following r e m a r ks with w h i ch I am in respectful a g r e e m e n t: "In J o hn v R e es (supra) a C o u rt in Britain w o u ld not allow a c h a i r m an to postpone a M e e t i ng of P e n b r o ke L a b o ur Party Constituency m e r e ly because there w as disorder. T he C o u rt ruled that the c h a i r m an should h a ve adjourned the conference for a short time to enable order to be restored. It therefore held that the C o m m i t t ee that w as subsequently elected at the s a me m e e t i ng u n d er a different c h a i r m an ( w h i ch the delegates appointed in order to continue the c o n f e r e n c e) w as properly elected. W h at I am trying to e m p h a s i se is that o n ce a conference h as b e en duly c o n v e n e d, the participants are obliged to see to it that its business is transacted. T he c h a i r m an although an important m e m b er is not e x p e c t ed to w i t h d r aw or abort it m e r e ly b e c a u se there are p r o b l e m s. He is expected to strive to solve t h em so that the conference c an c o m p l e te its business." I n d e ed e v en at the e x p e n se of overburdining this j u d g m e nt I should like to respectfully a d o pt the r e m a r ks of the L e a r n ed J u d ge himself M e g a r ry J in the case of J o hn v R e es (supra) on the duties of a c h a i r m an of a meeting. This is w h at he said at p 2 9 3: " T he first duty of the c h a i r m an of a m e e t i ng is to k e ep order if he can. If there is disorder, his duty , I think, is to m a ke earnest a nd sustained efforts to restore order, a nd for this p u r p o se to s u m m on to his aid a ny officers or others w h o se assistance is available. If all his efforts are in vain, he should endeavour to put into operation w h a t e v er provisions for adjournment there are in the rules, as by obtaining a resolution to adjourn. If this proves impossible, he should exercise his inherent p o w er to adjourn the meeting for a short while, such as 15 minutes, taking d ue steps to ensure so far as possible that all present k n ow of this adjournment. If instead of m e re disorder there is violence, I think that he should take similar steps, save that the greater the violence the less prolonged should be his efforts to restore order before adjourning. In my j u d g m e n t, he has not merely a p o w er but a duty to adjourn in this w a y, in the interests of those w ho fear for their safety. I am not suggesting that there is a p o w er a nd a duty to adjourn if the violence consists of no m o re than a f ew technical assaults a nd batteries. M e re pushing and jostling is o ne thing; it is another w h en people are put in fear, w h e re there is h e a vy punching, or the knives are out, so that blood m ay flow, a nd there are prospects, or m o r e, of grievous bodily h a r m. In the latter case, the sooner the c h a i r m an adjourns the meeting the better. At meetings, as elsewhere, the Q u e e n 's P e a ce m u st be kept. If, then, the chairman has this inherent p o w er a nd duty, w h at limitations, if any, are there on its exercise? First, I think that the p o w er a nd duty m u st be exercised b o na fide for the purpose of forwarding and facilitating the meeting, a nd not for the purpose of interruption or procrastination. S e c o n d, I think that the adjournment m u st be for no longer than the necessities appear to dictate. If the adjournment is merely for such period as the c h a i r m an considers to be reasonably necessary for the restoration of order, it w o u ld be within his p o w er and his duty; a longer adjournment w o u ld not. O ne m u st r e m e m b er that to attend a meeting m ay for s o me m e an travelling far a nd giving up m u ch leisure. An adjournment to another d ay w h en a m e re 15 minutes might suffice to restore order m ay well i m p o se an unjustifiable burden on m a n y; for they m u st either once m o re travel far and give up their leisure, or else remain a w ay and lose their chance to speak and vote at the meeting." N ow on the version of D W1 M r. Lira M o t e te the meeting of the 17th April 1 9 98 w as not adjourned for a reasonable period for the restoration of order but it w as completely "closed" - obviously sine die. I hold that M r. M a o pe h ad no colour of right to do so both in terms of second Respondent's constitution a nd on the authority of John v R e es case w h i ch I subscribe to. In any event as earlier stated I have already found as a fact that the meeting of the 17th April 1 9 98 w as not closed by M r. M a o p e. W h at I believe h a p p e n ed is that the chairman of the M a f e t e ng Constituency N o . 55 C o m m i t t ee continued with the meeting until in the evening w h en he adjourned it to the 18th April, 1 9 9 8. I hold that he w as acting within his rights as chairman. He cannot be faulted. T he meeting remained c o m p e t e nt to transact business. After all indications are that the chairman's decision to continue with the meeting and adjourn it as aforesaid had the support of m e m b e rs of the Constituency in attendance. A q u o r um for that matter had b e en met. In the circumstances I have no hesitation in holding the third point of dispute in favour of the Applicant n a m e ly that the meeting of the 17th April, 1998 w as properly closed by the chairman of the Constituency C o m m i t t ee in question and that it w as lawfully adjourned by h im to the 18th April 1 9 9 8. As indicated earlier, the Applicant w as unanimously elected at the meeting of the 18th April 1 9 9 8. Again as earlier stated the Respondents contend that the election of Applicant is not binding on t h em by virtue of the fact that the meeting in question w a s, so the argument goes, unconstitutional. I cannot accept this a r g u m e nt for reasons fully set out above. S ee also J o hn v R e es (supra) at 2 9 4 - 2 95 wherein the L e a r n ed judge held as follows: " T he elections conducted after the departure of the plaintiff (the N EC delegation in this case) w e re accordingly valid." T h e se w o r ds apply with equal force to the present case. O n ce m o re the R e s p o n d e n ts base their challenge to Applicant's election on Section 2 1 ( m) and 2 3 ( d) of the Constitution of S e c o nd R e s p o n d e n t. I proceed then to e x a m i ne these sections. Section 2 1 ( m) deals with the functions of the National Executive C o m m i t t ee w h i ch are stated to be the following: " To consider and confirm from the lists prepared by the Constituencies of the L e s o t ho C o n g r e ss for D e m o c r a cy candidates w ho will represent it at elections for a C o u rt of L a ws including s m a ll courts for districts. F o l l o w i ng the p r o c e d u re for a p p o i n t m e nt of representatives fully d e s c r i b ed in Part 1; sections 18 a nd 19 a nd their sections." I m u st honestly c o n f e ss that this S e c t i on h as g i v en me p r o b l e ms b e c a u se of the a m b i g u o us a nd inelegant m a n n er in w h i ch it is drafted. S e l d om in my e x p e r i e n ce b o th at the B a r, S i d e / B ar a nd as a j u d ge h a ve I c o me across w o r se d r a f t s m a n s h ip as is reflected in this section a nd i n d e ed in the w h o le constitution (e.g. the individual p o w e rs of c o m m i t t ee m e m b e rs at a ny level are not e v en spelt out). T he Constitution is n ot o n ly untidy a nd contradictory in t e r ms b ut it is also replete w i th a m b i g u o us references s u ch as " L e k h o t la la M e l a o" ( C o u rt of L a w s) for w h i ch the C o u rt is e x p e c t ed to surmise " L e k h o t la la K e t sa M e l ao (Parliament). T h at is u n a c c e p t a b l e. S u ch is the unsatisfactory nature of the S e c t i on on w h i ch the R e s p o n d e n ts so heavily rely for their contention that t h ey are free to " a p p o i n t" a n y o ne for " a ny constituency for as long as he is a m e m b er of the 2 nd R e s p o n d e n t" ( p a r a g r a ph 17 of the f o u n d i ng affidavit of Lira M o t e t e )! Y et Part V S e c t i on E ( b) of S e c o nd R e s p o n d e n t 's Constitution clearly o u t l a ws a ny n o m i n a t i o ns as o p p o s ed to election of candidates. It r e a ds as f o l l o ws : " c a n d i d a t es of the L e s o t ho C o n g r e ss for D e m o c r a cy shall n ot be n o m i n a t e d" F or my part, 1 should like to state m at Section 2 1 ( m) of S e c o nd R e s p o n d e n t 's Constitution m u st o b v i o u s ly be r e ad w i th Part V S e c t i on E ( b) a nd m u st be interpreted m e a n i n g f u l ly a nd p u r p o s i v e ly in o r d er to give effect to the a v o w ed aspirations, a i ms a nd objectives of S e c o nd R e s p o n d e nt as earlier stated n a m e ly d e m o c r a c y. It m u st therefore not be interpreted to c o n d o ne o p p r e s s i on a n d / or dictatorship. Indeed there lies the test. T he meaningful and purposive interpretative approach w as adopted by this Court in L e p o qo Seoehla M o l a po v Director of Public Prosecutions CRI/T/1/97 (reported in Butterworths Constitutional L aw Reports - 1997(8) B C LR 1 1 54 (Lesotho). I see no reason w hy I should depart from this approach in the instant matter. D e m o c r a cy as I have always perceived it to be is the will of the people themselves. Indeed v ox populi v ox D ei h e n ce a g o v e r n m e nt in a d e m o c r a cy is a g o v e r n m e nt of the people by the people a nd for the people. T h e se elections are aimed in that direction and must be viewed in that spirit as well. In the s a me breath this Court rejects the argument that in terms of Section 23(b) or 23(q) of the Constitution of S e c o nd R e s p o n d e nt the Constituency C o m m i t t ee merely proposes n a m es of candidates. It does not propose but elects its o wn candidate. S u ch election m u st be given effect to in a d e m o c r a c y. It is the very will of the people. T he Respondents cannot ignore such election but they are b o u nd by it. There is in my v i ew no r o om for appointment or nomination in those circumstances as suggested by the Respondents or at all. In the circumstances I consider that it is both unreasonable a nd undemocratic and therefore contrary to the tenor and spirit of the Constitution read as a w h o le for the First and Second Respondents to appoint a n y o ne (namely Fourth R e s p o n d e nt in this case) other than the person democratically elected by the people themselves at the latter's constituency (namely the Applicant). As to the pedigree of the Fourth R e s p o n d e nt it will be convenient if I reproduce paragraph 19 of the Applicant's founding affidavit w h i ch is not challenged at all. It reads: " 19 As far as I am a w a r e, the fourth R e s p o n d e nt d o es not e v en belong to the second Respondent's M a f e t e ng N u m b er 55 Constituency. He belongs to the Thaba-Phechela constituency w h e re he stood for similar elections and lost twice. He does not feature a n y w h e re in the structure of our constituency a nd his imposition on the people of M a f e t e ng N u m b er 55 Constituency has c o me as a shock to say the least in as m u ch as he w o u ld not e v en h a ve qualified to stand for elections thereat." That the First and S e c o nd Respondents w o u ld indeed secretly seek to i m p o se a complete outsider w ho is discredited for that matter n a m e ly the Fourth R e s p o n d e nt on the people of M a f e t e ng Constituency N o . 55 and without their consent as has b e en the case here until late in the proceedings m u st belong in the realm of dictatorship w h i ch is alien to d e m o c r a c y. T he Court is appalled by this behaviour c o m i ng from the ruling party w h i ch as earlier stated has set itself high standards of "educating" the Basotho people as a w h o le w h at true d e m o c r a cy is a nd w h i ch party is campaigning to be returned to p o w e r. It s e e ms to me that in this instance the respondents have m o v ed in the w r o ng direction a nd it is thus the duty of the Court to bring t h em b a ck into line in accordance with the Constitutional principles of d e m o c r a c y. T he Applicant is the people's choice. Indeed I find that the R e s p o n d e n t 's actions are out of step and contrary to the tenor a nd spirit of the C o n s t i t u t i on of L e s o t ho itself w h i ch is b a s ed on d e m o c r a t ic principles of transparency, o p e n n e s s, accountability a nd respect for h u m an rights as w e ll as the will of the p e o p l e. In this regard it is n e c e s s a ry to b e ar in m i nd S e c t i on 16 of the Constitution of L e s o t h o. It reads: " 1 6. ( 1) E v e ry p e r s on shall be entitled to, a nd ( e x c e pt w i th his o wn c o n s e n t) shall not be h i n d e r ed in his e n j o y m e nt of f r e e d om to associate freely w i th other p e r s o ns for ideological, religious, political, e c o n o m i c, l a b o u r, social, cultural, recreational a nd similar p u r p o s e s ." A g a in S e c t i on 2 of the Constitution p r o v i d es as f o l l o w s: " T h is Constitution is the s u p r e me l aw of L e s o t ho a nd if a ny other l aw is inconsistent w i th this Constitution, that o t h er l aw shall, to the extent of the inconsistency, be v o i d ." T he C o u rt w as i n f o r m ed v e ry late in the p r o c e e d i n gs by M r. M a t s au that the F o u r th R e s p o n d e nt is n ow standing as an i n d e p e n d e nt c a n d i d a te in the f o r t h c o m i ng G e n e r al Elections. He w as thus w i t h d r a w i ng his o p p o s i t i on f r om the matter. T h at h o w e v e r, I o b s e r v e, c a n n ot be to the credit of the First a nd S e c o nd R e s p o n d e n ts w ho h a ve stuck to their g u n s. I c o n s i d er that untold d a m a ge h as a l r e a dy b e en d o ne a nd that regrettably the F o u r th R e s p o n d e nt h i m s e lf c a n n ot e v en a v o id costs in the m a t t er for h a v i ng g o ne this far w i th his opposition. M r. M a t s au for the R e s p o n d e n ts has argued that since nomination d ay h as already passed or closed this application m u st be dismissed on that ground alone. I cannot accept this argument. 1 w as referred to cases from foreign jurisdictions dealing with legislation or statutes in those countries n a m e ly H o w es v Turner & Writ (1876) C PD 6 70 a nd B e c k m a nn v Minister of the Interior and Others 1 9 62 (2) S. A. 2 3 3. S u ch statutes w e re h o w e v er not d r a wn to the attention of the Court to determine if they bear a ny similarity to the present case. In the result I remain unpersuaded that those cases have any persuasive value to this Court. M o r e o v er I observe that those cases dealt with entirely different situations from the instant case. F or e x a m p le in H o w es v Turner & Wright (supra) the nomination of the candidate in question w as out of time and there h ad b e en no recourse to the Court to stay the nomination day. In B e c k m a nn v Minister of the Interior a nd others (supra) it w as purely an application for postponement of an election. T he t wo cases are thus distinguishable from the instant case This case is not about postponement of the General Elections T he Applicant obtained an interim Court O r d er of interdict from a competent Court against all the Respondents including the Independent Electoral C o m m i s s i on (Third Respondent). As I see it tins application is clearly for a declaration of rights. S ee Section 1 19 of the Constitution of Lesotho w h i ch reads thus: " 1 19 (1) T h e re shall be a H i gh Court w h i ch shall h a ve unlimited original jurisdiction to hear a nd determine any civil or criminal p r o c e e d i n gs a nd the p o w er to r e v i ew the decisions or proceedings of a ny subordinate or inferior court, court-martial, tribunal, b o a rd or officer exercising judicial, quasi-judicial or public administrative functions u n d er a ny l aw a nd s u ch jurisdiction a nd p o w e rs as m ay be conferred on it by this Constitution or by or u n d er a ny other l a w ." S ee also Section 2 ( 1) (a) a nd © of the H i gh C o u rt A ct 1 9 78 w h i ch p r o v i d es as follows: "2 (1) T he H i gh C o u rt of L e s o t ho shall continue to exist a nd shall, as heretofore, be a superior court of record, a nd shall h a v e, (a) unlimited jurisdiction to h e ar a nd d e t e r m i ne a ny civil or criminal p r o c e e d i n gs u n d er a ny l aw in force in L e s o t h o; © in its discretion a nd at the instance of a ny interested person, p o w er to inquire into a nd d e t e r m i ne a ny existing future or contigent (sic) right or obligation notwithstanding that s u ch p e r s on c a n n ot claim a ny relief consequential u p on the determination." I consider that by virtue of his election by the M a f e t e ng C o n s t i t u e n cy N o. 55 the Applicant h as a clear right a nd h as accordingly m a de out a c a se for a declaration of rights. R e g a r d i ng the claim of interdict I c o n s i d er that t he A p p l i c a nt h as established the principles t h e r e of as fully set o ut in the leading c a se of S e t l o g e lo v Setloselo 1 9 14 AD 2 21 n a m e ly a clear right, an injury actually c o m m i t t ed a nd a b s e n ce of alternative a d e q u a te r e m e d y. It is s u b m i t t ed on b e h a lf of the R e s p o n d e n ts that the A p p l i c a nt h ad an alternative r e m e dy in that he c o u ld h a ve s t o od for the f o r t h c o m i ng G e n e r al Elections as an i n d e p e n d e nt c a n d i d a t e. I c a n n ot a c c e pt this a r g u m e n t. W hy s h o u ld the A p p l i c a nt be forced to stand as an i n d e p e n d e nt candidate w h en he h as a party of his o wn c h o i ce a nd w h en the p e o p le of M a f e t e ng C o n s t i t u e n cy N o . 55 w ho s u p p o rt A p p l i c a nt clearly w a nt h im as their c a n d i d a t e? To a c c e de to the R e s p o n d e n t s' a r g u m e nt w o u ld clearly a m o u nt to a denial of the f u n d a m e n t al h u m an right of f r e e d om of association to the Applicant. As earlier stated this right is p r o t e c t ed a nd e n t r e n c h ed in S e c t i on 16 of the Constitution of L e s o t h o. In the c i r c u m s t a n c es I c o n s i d er that there is no alternative a d e q u a te r e m e dy available to the A p p l i c a n t. T h e re is again the aspect that a d m i t t e d ly the A p p l i c a nt w as n ot h e a rd b e f o re the prejudicial decision to c a n c el the elections in q u e s t i on w as t a k e n. I attach d ue w e i g ht to the u n c h a l l e n g ed v e r s i on of the A p p l i c a nt as c o n t a i n ed in p a r a g r a ph 20 of his f o u n d i ng affidavit w h e r e in he states as follows: " 20 I respectfully aver that the first R e s p o n d e n t 's d e c i s i on aforesaid w h i ch w as m a de without affording b o th the C o n s t i t u e n cy C o m m i t t ee a nd I in particular a hearing is by all a c c o u n ts a c o m p e te travesty of e l e m e n t a ry principles of justice a nd fairness. It is b a s ed clearly on a o ne s i d ed v e r s i on of e v e n ts as p r e s e n t ed by first R e s p o n d e n t 's o wn m e m b e r s. It is biased, high-handed a nd unsupportable in l aw a nd in t e r ms of the letter a nd spirit of the constitution of s e c o nd R e s p o n d e nt a nd the constitution of Lesotho. It is a glaring irregularity a nd impropriety a nd altogether u n d e m o c r a t ic of an organization that s e e ks political office in a democratic f r a m e w o r k. A b o ve all it is highly prejudicial a nd h a r m f ul to the interest a nd aspirations of the m e m b e rs of s e c o nd R e s p o n d e nt in the M a f e t e ng N u m b er 55 constituency a nd m y s e lf as the elected constituency candidate. It also s o ws s e e ds of confusion anarchy a nd discort (sic) within m e m b e rs of s e c o nd R e s p o n d e nt in the constituency of M a f e t e ng N u m b er 5 5 ." T he Applicant's sentiments expressed in this paragraph are indeed well taken. As the elected candidate for the s e c o nd R e s p o n d e nt 1 consider that the Applicant h ad a legitimate expectation to be heard. T h is o m i s s i on again vitiates R e s p o n d e n t 's actions as contrary to the principles of natural justice a nd therefore as unlawful. I s h o u ld m e n t i o n, for c o m p l e t e n e s s, that in the course of his address to the Court A d v. M da for the Applicant m a de an application f r om the B ar for a m e n d m e nt of prayer 2(d) of the Notice of M o t i on to a dd the following w o r ds at the e nd thereof: " A nd the third R e s p o n d e nt reflect s a me in its register of candidates accordingly." T he a m e n d m e nt w as o p p o s ed by M r. M a t s a u. After hearing s u b m i s s i o ns f r om both counsel I duly granted the application in as m u ch as 1 could perceive no real c o u n s el I d u ly g r a n t ed the application in as m u ch as I c o u ld p e r c e i ve no real p r e j u d i ce to the First a nd S e c o nd R e s p o n d e n ts a nd n o ne w as s h o wn to exist. I c o n s i d e r ed that the a m e n d m e nt w as in a c c o r d a n ce w i th the w h o le i m p o rt of the p r a y er as it s t o od then. T h is brings me to the e n d. In the c i r c u m s t a n c es of the c a se I am satisfied that the A p p l i c a nt h as s u c c e e d ed to m a ke out a c a se for the relief s o u g ht in the N o t i ce of M o t i on as a m e n d e d. I c o n s i d er that this w as a v e ry i m p o r t a nt constitutional m a t t er w h i ch justified the e m p l o y m e nt of t wo C o u n s e l. A c c o r d i n g ly the R u le is c o n f i r m ed a nd the application g r a n t ed as p r a y ed w i th costs including costs of t wo ( 2) C o u n s e l. F or the a v o i d a n ce of d o u bt I m a ke the f o l l o w i ng O r d e r: (a) It is declared m at the decision of First R e s p o n d e nt purporting to nullify Applicant's election a n d / or to i m p o se the F o u r th R e s p o n d e nt as the S e c o nd R e s p o n d e n t 's c a n d i d a te in the M a f e t e ng N u m b er 55 C o n s t i t u e n cy for the 1 9 98 G e n e r al Elections is null a nd v o id on a c c o u nt of s u ch decision b e i ng u n l a w f u l, irregular, unconstitutional, as w e ll as fraught w i th p r o c e d u r al a nd substantial injustice a nd impropriety; ( b) T he Third R e s p o n d e nt is h e r e by restrained a nd interdicted f r om n o m i n a t i ng a n d / or c o n f i r m i ng the F o u r th R e s p o n d e nt as a c a n d i d a te of the S e c o nd R e s p o n d e nt in the C o n s t i t u e n cy of M a f e t e ng N u m b er 55 for the f o r t h c o m i ng G e n e r al Elections. © In particular it is d e c l a r ed that the A p p l i c a nt is t he lawful a nd d u ly elected c a n d i d a te of the S e c o nd R e s p o n d e nt in the C o n s t i t u e n cy of M a f e t e ng N u m b er 55 for t he f o r t h c o m i ng G e n e r al Elections a nd that the T h i rd R e s p o n d e nt shall reflect s a me in its register of c a n d i d a t es accordingly. (d) T he First, S e c o nd a nd F o u r th R e s p o n d e n ts are o r d e r ed to p a y, jointly a nd severally, the o ne p a y i ng the others to be a b s o l v e d, the costs of the A p p l i c a nt including costs of t wo ( 2) C o u n s e l. M M. R a m o d i b e di J U D GE 6th M ay 1 9 98 F or Applicant : A d v. P h a f a ne a nd A d v . M da F or First, S e c o nd a nd Fourth R e s p o n d e n t s: M r. M a t s au