Morrison v Pitso and Others (CIV/APN 41 of 2000) [2000] LSCA 12 (28 March 2000)

CIV/APN/41/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- M A M E L LO M O R R I S ON A P P L I C A NT vs 1ST T H A BO P I T SO L E S O T HO E D U C A T I ON P A R TY I N T E R IM P O L I T I C AL A U T H O R I TY M A N C H A F A T SO P H I L O M E NA M O S E SE M I M S T ER OF L AW A ND C O N S T I T U T I O N AL A F F A I RS A T T O R N EY G E N E R AL 6TH 3RD 2ND 4TH R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT 5TH R E S P O N D E NT R E S P O N D E NT J U D G M E NT Delivered by the H o n o u r a b le Mr Justice S. N. Peete on the 28th M a r c h, 2 0 00 On the 4th d ay of February 2 0 00 the applicant m o v ed this application ex parte before L e h o h la J. In her Notice of M o t i on the Applicant h ad prayed for an order in the following terms: - 1. Dispensing with the R u l es of C o u rt concerning forms, notices a nd service of process herein on account of the u r g e n cy of this matter; 2. A rule nisi issue returnable on a date a nd time determinable by the a b o ve Honourable Court calling u p on the Respondents to s h ow cause, if any, w hy the following order shall not be m a de final; (a) Interdicting Respondents forthwith from proceeding with a nd giving effect to decisions of S e c o nd Respondent dated 12th January a nd 26th January 2 0 00 in terms of w h i ch Applicant is being withdrawn as a Representative of Second Respondent a nd replaced by Fourth Respondent. (b) Declaring the purported withdrawal of the appointment of Applicant and her replacement by Fourth Respondent in Third R e s p o n d e nt as being void, illegal unconstitutional a nd of no force and effect. (c) Directing First, S e c o nd and Fourth Respondents to p ay the costs hereof and the other Respondents to pay s a me only in the event of their opposing this application. (d) Granting Applicant further and/or alternative relief. 3. Prayers 1 and 2 (a) to operate with immediate effect as interim order. Lehohla J. having heard Mr Sefako for the applicant and having perused the papers felt not inclined to grant an interim order as prayed but instead ordered that the respondents be served with papers and that the matter be heard as a matter of urgency on the 14th February 2 0 0 0. On the 14th M a r ch 2 0 00 w h en the matter w as a r g u ed Mr Ntlhoki, for the applicant, submitted in the m a in that the purported withdrawal of the applicant f r om the m e m b e r s h ip of the Interim Political Authority w as null a nd v o id b e c a u se the a u d i - a l t e r am p a r t em principle h ad b e en violated in that w h en the s e c o nd respondent t o ok a decision to terminate her m e m b e r s h ip in the I P A, the applicant h ad not b e en g i v en a fair hearing or opportunity to m a ke representations. It w as c o m m on cause that the applicant w as appointed as a representative of the S e c o nd R e s p o n d e nt in the I PA in terms of Section 5 of the Interim Political Authority A ct n o. 16 of 1998. H er n a me w as duly published in a gazette. It reads:- " L E G AL N O T I CE N O . 1 17 OF 1 9 98 M e m b e rs of the Interim Political Authority Notice 1 9 98 Pursuant to section 5 of the Interim Political Authority A ct 1 9 9 81 I, SEPHIRI M O T A N Y A NE Minister of L aw a nd Constitutional Affairs hereby publish the list of n a m es of the m e m b e rs of the Interim Political Authority - P O L I T I C AL P A R TY 1. Lesotho Congress for Democracy 2. Basutoland C o n g r e ss Party N A M ES OF R E P R E S E N T A T I V ES - Mr Kelebone M a o pe Mr T om Thabane 3. Basotho National Party - D r E. 'MeliMalie M o r e na L e k h o o a na Jonathan 4. Marematlou F r e e d om Party 5. Sefate Democratic U n i on - Mr Bofihla N k u e be 6. National Progressive Party 7. Popular Front for D e m o c r a cy Ms Rethabile Sakoane - Mr Justin S. Ntlhabo - Alex K. M a k a ra - Mr Rakali Khitšane - Mr Lekhetho R a k u o a ne 8. K o p a n a ng Basotho Party - Ms Limakatso R. Ntakatsane - Mr Pheello M o s a la 9. Lesotho Labour Party 10. Lesotho Education Party 11. Christian Democratic Party 12. National Independence Party - Mr M. Tyhali - Mr Charles D. Mofeli - Mr T. Pitso - M rs M a m e l lo Morrison - Mr Phai Fothoane - M rs Malekunutu Sekonyela - Mr A n t h o ny C. Manyeli Mr M o t i k oe Motikoe 2. T he M e m b e rs of the Interim Political Authority Notice 1998 is revoked. M I N I S T ER OF L AW A ND C O N S T I T U T I O N AL A F F A I RS S E P H I R I M O T A N Y A NE N O TE 1. 2. Act No.l6 of 1998 L. N. No. 116 of 1998" In my v i ew the gazettement of the n a m es of the m e m b e rs of the Authority u n d er Section 5 (4) b e s t o ws legal validity to the appointments m a de by political parties u n d er section 5 (2). It stands to g o od reason that the legality of m e m b e r s h ip to I P A, o n ce gazetted, m u st stand until the gazette is p r o n o u n c ed null a nd void (see K h a u h e lo Ralitapole a nd others vs Sephiri M o t a n y a ne a nd others C I V / A P N / 2 8 8 / 9 9 : J a j h ay vs R e nt C o n t r ol B o a r d - 1 9 60 ( 3 ) S A 1 8 9 ). It w as c o m m on cause that at the time she w as so appointed the applicant w as not a m e m b er of Lesotho Education Party, but w as a m e m b er of B a s o t ho National Party. In her founding affidavit the applicant states that on the 17th January 2 0 0 0, the first respondent served her with a letter M M1 dated 12th January 2 0 0 0. It reads (fairly translated) as follows: - L E S O T HO E D U C A T I O N AL P A R TY (L. E. P.) P. O. B OX 524 - M O R A L E 'S H O EK - L E S O T HO " E E A N G O L A" F R O M: L EP Secretarial A d m i n. Depart. TO : M rs M a m e l lo Morrison Interim Political Authority L N DC M A LL Private B ag A 86 Maseru 12.01.2000 M rs M a m e l lo M o r r i s o n, As a result of tension within the L E P, the National Executive C o m m i t t ee h as f o u nd that the leader of the party c o m m i t t ed irregularities w h en the Interim Political Authority w as established by going with y ou therein w h en y ou w e re not a m e m b er of the party. F or these a nd other reasons the C o m m i t t ee a nd his (the leader's) advisers h a ve advised h im that y ou should be w i t h d r a wn f r om the I P A. party should introduce its m e m b er with i m m e d i a te effect. Y ou are accordingly notified that the party ( L E P) hereby w i t h d r a ws y ou f r om the Interim Political Authority. W i th thanks C C: Minister of L aw & Constitutional Affairs Secretary General I PA Secretary C h a i r m an L EP Signed: T. Pitso" T he purport of this letter " M M 1" w as to terminate the a p p o i n t m e nt of applicant in the I PA on the g r o u nd that applicant w as not a m e m b er of the s e c o nd respondent. It should here be m e n t i o n ed that a political party listed u n d er Sec.5 (1) of the I PA A ct is entitled to w i t h d r aw its representative f r om the Authority. Section 5 "(3) A political party m a y, at a ny time, in writing w i t h d r aw its representative f r om the Authority a nd s u ch a representative shall forthwith cease to be a m e m b e r ." [of I P A ]. It is also relevant to quote section 5 (2) of the A ct w h i ch reads- "Subject to sections 8 and 9, m e m b e rs referred to in subsection (1) shall be appointed by their respective political parties." T he appointment of the applicant as the representative of the S e c o nd R e s p o n d e nt in I PA w as purportedly m a de under this section 5 (2) a nd the applicant avers in paragraph 8 of her affdavit- -8- " At all relevant and material times Applicant w as representative of S e c o nd R e s p o n d e nt within Third Respondent, having b e en duly a nd lawfully appointed thereto by S e c o nd Respondent." Regarding this specific allegation, it m u st be noted that the answering affidavit of T h a bo Pitso, first respondent, did not either admit or d e ny the s a me save to state argumentatively that as a result of n u m e r o us complaints from the party m e m b e r s, it h ad b e c o me a notorious fact that the applicant w as a m e m b er of Basotho National Party a nd that this m e m b e r s h ip " w as irreconcilable with her representation of the S e c o nd R e s p o n d e nt in the Interim Political Authority T he Applicant by reason of being a m e m b er of Basotho National Party is therefore disqualified from being a m e m b er (sic. representative) of the S e c o nd R e s p o n d e nt in the Interim Political Authority, m o r e so as she is not a m e m b er of the S e c o nd Respondent". It therefore b e c o m es apparent that even t h o u gh the fact of appointment is not denied, the second respondent contends that the appointment of the applicant be declared a nullity in terms of Section 5 (2) of the A ct because the applicant is not a m e m b er of L e s o t ho Education Party. It is submitted by Mr Ntlhoki that the applicant w as not disqualified under l aw f r om being a representative of the S e c o nd R e s p o n d e nt because, so he argues, exlege party m e m b e r s h ip is not a prerequisite a nd is therefore irrelevant. He submits that in this regard the requirements of section 8 a nd section 9 of the A ct should be the sole considerations. T h ey read- "Qualifications 8. No person shall qualify to be a m e m b er of the Authority unless he qualifies to be a m e m b er of Parliament under section 58(1) of the Constitution Disqualification f r om office 9. No person shall qualify to be a m e m b er of the Authority if he is disqualified f r om m e m b e r s h ip of Parliament under Section 59 (2) of the Constitution". T he crucial w o r ds in Section 5 (2) are "shall be appointed by their respective political parties." It is contended by Mr M a t s au that a fair and ordinary interpretation of this subsection is that the m e m b e rs of I PA m u st necessarily be m e m b e rs of political parties w ho appoint them. He stresses the w o rd "their" a nd that in the singular this c o m es out to be "his or her respective political party". He submits therefore that party m e m b e r s h ip is an explicit requirement in Section 5 (2) a nd that the clear a nd ordinary m e a n i ng is that each of the listed political parties shall appoint as its representatives t wo of its party m e m b e r s. This m ay be so and indeed o n ce a political party appoints any person as its representative in the I P A, it can be safely a s s u m ed that the person enjoys the confidence of the party. It is my considered v i ew that the appointment of the representative is left as the sole prerogative of the political party the only limits being qualification provisions under section 8 a nd section 9 of the Act. T he party m e m b e r s h ip is an issue w h i ch m ay d e p e nd on m a ny factual considerations e.g. p a y m e nt of party subscriptions, or filling of renewal forms. W h at happens, o ne m ay ask, to an I PA m e m b er w ho forgets or fails r e n ew his party m e m b e r s h i p? Or o ne w ho changes his party m e m b e r s h ip midstream, or w ho is a party m e m b er but disobeys the orders f r om the party headquarters? All these are issues w h i ch fall under the political arena a nd prerogative of the party. If party m e m b e r s h ip w as a prerequisite, the legislature should h a ve m a de a provision w h i ch stated: " No person shall qualify to be a m e m b er of the Authority unless he is a m e m b er of a ny of the party listed under 5 (1) of this Act." Mr Ntlhoki submits that to interpret section 5 (2) as having an additional requirement that the representative should also be m e m b er of the party appointing h im w o u ld be tantamount to legislating a nd that putting aside qualification a nd disqualification provisions of the A ct and of the Constitution, it is not competent for the court to question the party credentials of the representative. If h o w e v er it is s h o wn that the representative suffered u n d er these qualification provisions, the appointment of such representative w o u ld be declared null a nd void ab initio. It is a mystery w hy the applicant despite her "notorious" party affiliations got the appointment as a party representative of the second respondent to an important f o r um like the Interim Political Authority. T he credentials for appointment as a party's representative m ay indeed be multitudinous a nd party m e m b e r s h ip m ay be o ne of those. It is not unlawful or irrational therefore for a political party to decide to appoint a person as representative w ho is not a m e m b er of the party because the party has absolute freedom to appoint any person it d e e ms fit; and in so doing it m a k es a conscious a nd deliberate choice which, of course, it can u n do if circumstances so require under section 5 (3) of the Act. It is not for the court to grant relief not p r a y ed for (Beck's T h e o ry a nd Principles of P l e a d i n gs in Civil A c t i o ns - ( 1 9 8 2) p.63 a nd p. 7 9) a nd in this case the s e c o nd r e s p o n d e nt did not elect to m a ke a counter application as it w as indeed entitled to do ( R u le 8 (16)) of the H i gh C o u rt R u l es ( 1 9 8 0) praying for a declaratory order to the effect that the a p p o i n t m e nt of the applicant to the I PA a nd h er subsequent gazettement be of no legal force a nd e S e ct u p on g r o u nd that w h en she w as appointed by the s e c o nd r e s p o n d e nt as its representative in the I P A, the applicant w as n ot a m e m b er of the s e c o nd respondent. It w as necessary in my v i ew that since the n a me of the applicant h ad b e en published in the gazette in terms of section 5 (4) of the I PA A c t, the s e c o nd respondent should h a ve l o d g ed this counter-application to h a ve the inclusion of the applicant's n a me in the gazette declared null a nd void; it w as not sufficient for the s e c o nd respondent to c o n t e nd itself in assailing the a p p o i n t m e nt of the applicant as if it w as fraudulently induced. T he C o u rt furthermore w as not m a de to fully understand w hy paragraph 8 of the applicant's f o u n d i ng affidavit w as not directly controverted. It reads- " At all relevant a nd material times, Applicant w as a representative of the S e c o nd R e s p o n d e nt within Third R e s p o n d e n t, h a v i ng b e en duly a nd lawfully appointed thereto by s e c o nd respondent." This w as a fact that the respondent w as called u p on to affirm or d e n y. T he m o st important issue to be determined by this court is w h e t h er the s e c o nd respondent in exercising its prerogative to w i t h d r aw the n a me of the applicant f r om I PA under section 5 (3) acted lawfully a nd in accordance with the audi alteram p a r t em principle. T he letter MM 1 written to the Applicant on the 12.1.2000 is clear a nd u n a m b i g u o u s, for it states: " Y ou are accordingly notified that the party (L. E. P.) h e r e by w i t h d r a ws y ou f r om the Interim Political Authority." It is also apparent from this letter that the Party's National Executive C o m m i t t ee of the Party m u st h a ve sat a nd determined the fate of the applicant - o ne m ay add, in her absence. T he reason for her withdrawal w as that she w as not the m e m b er of the L E P. W h at is not in dispute is that before this letter w as written, the applicant h ad not b e en afforded an opportunity to m a ke representations or to give reasons w hy her n a me w as not to be withdrawn on the grounds of her party allegiances. Her gazettement on the 1st December 1998 as member of the IPA had clothed her with a clear right to be a member of the I PA until her n a me h ad b e en w i t h d r a wn in terms of Section 5(2), e v en t h o u gh it m ay be said that her appointment w as seemingly u n w i se or imprudent. T he letter M MI w as hand-delivered to her on the 17th January 2 0 00 by the first respondent a nd she replied through her attorney on the 20th January 2 0 0 0. T he letter reads- " 2 0 th January 2 0 00 T he Secretary General L e s o t ho Education Party C /O T he Interim Political Authority M A S E RU Dear Sir, Re: W I T H D R A W AL OF M RS M A M E L LO M O R R I S ON We act for M RS M A M E L LO M O R R I S ON On 17th J a n u a ry 2 0 00 y ou served o ur client w i th a letter purporting to w i t h d r aw h er a p p o i n t m e nt in the Interim Political Authority. Y o ur said letter is dated 12th J a n u a ry 2 0 0 0. Y ou did n ot give our client a hearing at all in a matter that affects h er status in a public office a nd other attendant rights. T h is sort of action h as already b e en declared illegal a nd of no force a nd effect by the H i gh C o u rt in a similar incident. Y o ur reasons for the purported w i t h d r a w al of o ur client's a p p o i n t m e nt are also invalid in terms of the Interim Political Authority A c t. In the result, w i t h d r aw y o ur purported w i t h d r a w al of the a p p o i n t m e nt failing w h i ch we shall take appropriate legal action. By c o py h e r e of the Interim Political Authority is notified accordingly a nd requested n ot to give effect to the said u n l a w f ul action. Y o ur faithfully M . N T L H O K I & C O. CC: INTERIM POLITICAL A U T H O R I T Y" On the s a me d ay the second respondent wrote another letter " L E P 1" w h o se fair translation reads- F R O M: L EP Secretarial Depart TO : M o f u m a h a li M a m e l lo Morrison M o f u m a h a li M a m e l lo M o r r i s on I am directed by the leader of L EP on behalf of the National Executive C o m m i t t ee of the party to ask y ou to give reasons before 25.01.2000 w hy y ou say y ou should not be w i t h d r a wn f r om I PA as the party intends to appoint its m e m b er in the I PA with immediate effect. W i th thanks Secretary General Signed: M o s e se C C; Co-Chairperson I P A ". O n ce a decision h ad b e en m a de to w i t h d r aw applicant f r om the I P A, this letter appears to be inconsequential. It is not clear w h e t h er this letter w as written after the receipt of M M2 (from Ntlhoki & C o . ). It is not clear w h e t h er it superseded M M1 - but w h at is clear is that the fourth respondent ( w ho incidentally h a p p e ns to be the n ew appointee of the s e c o nd respondent) w r o te the letter as the Secretary of the S e c o nd respondent. I am not g o i ng to impute a ny ulterior or base m o t i ve or design on her part. T he applicant replied this letter p er hers dated 24.1.2000. Fairly translated it reads thus- P. O. B ox 7 0 6 6, M A S E RU 100 24.01.2000 Secretary of L E P, P. O. B ox 524, M O R A L E 'S H O EK Sir/Madam, I h a ve received y o ur letter dated 20 January 2 0 0 0, a nd I a n n ex hereto c o py of the letter of Ntlhoki & C o ., in case y ou h a ve not received it, a nd it replies y o ur allegations. I thank y ou M. M o r r i s on C C . : M. Ntlhoki & C o. To complete her assignment, the fourth respondent w r o te yet another letter M M3 on the 26.01.2000. It reads- Translation Lesotho Educational Party (L. E. P.) P. O. B ox 5 24 - M o h a l e 's H o ek - Lesotho Lesotho Educational Party Date stamp 26 Jan. 2 0 00 F r o m: L EP Secretarial Administration Depart T o: T he Chairpersons - I PA M a s e ru By this letter I request y ou to forward the n a me of a m e m b er of L EP to be s w om in as a m e m b er of I P A. S he is ' M A N C H A F A T SO P H E N O M E NA M O S E S E. This letter has b e en jointly issued by the National Executive C o m m i t t ee a nd the leader of L. E. P. W i th thanks Date stamp Interim Political Authority 26 J AN 2 0 00 Secretary (sgd) C h a i r m an (sgd) L. E. P. T. Pitso (sgd) U n d er the Interim Political Authority Act, the second respondent is recognised as a political party (section 5 (1) (j) though it is cited as Lesotho Education (not "Educational") Party). As such, the second respondent h ad p o w er to appoint t wo representatives into the I P A; it also had p o w er to withdraw, at any time, its representative from the Authority w h e r e u p on such representative ceases to be a m e m b er of I P A. To the central inquiry whether the applicant w as entitled to be heard before her n a me w as w i t h d r a wn from I PA by the second respondent, a trite principle applies, namely, that w h e n e v er a statute e m p o w e rs a public b o dy to do an act or give a decision prejudicially affecting an individual in his or her liberty or property or existing rights, then unless the statute expressly or by implication indicates the contrary, that person is entitled to the protection of the audi alteram p a r t em rule ( M a t e b e s: vs Director of I m m i g r a t i on C of A ( C I V) 2/96. In this case a political party listed under 5 (1) of the A ct is an appointing authority w h i ch can m a ke decisions to withdraw o ne or both its representatives in the I PA or to substitute other persons at its discretion. (Sekautu vs Minister of L aw & Constitutional Affairs. I PA & AC - C I V / A P N / 4 4 8 / 99 dated 28/2/2000. A s s u m i ng the lawfulness of her appointment, it is not in dispute that the letter M M1 purporting to withdraw her from the I PA affected her status a nd other appurtenances of office including remuneration, which, the court w as reliably confided in from the bar, is quite seizable. T he applicant also had a legitimate expectation that she w o u ld remain in the I PA until the Authority w as dissolved or her n a me withdrawn after d ue process (Koatsa vs National University of L e s o t h o- 1991 - 1 9 9 2 L L R ( L B) 163: V an d er M e r we a nd O t h e rs vs Slabert No a nd others - 1 9 98 (3) SA 6 13 ( N ). T he facts of the case s h ow that the letter M M1 dated 12.1.2000 w as never w i t h d r a wn or superceded by any party decision. It should therefore stand as unrepudiated in itself and its effect under the provisions of section 5 (3) of the Act. T he question that arises is whether the applicant h ad been given a fair hearing before the decision it w as c o m m u n i c a t i ng w as m a d e. T he letter " L E P 1" dated 20th January 2 0 00 asking the applicant to give reasons w hy her n a me w as not to be w i t h d r a wn from the I PA w as written eight days after the decision to w i t h d r aw her n a me h ad b e en m a d e. T he case of M o r a n e li M o t a u ng vs Principal Secretary. Ministry of T o u r i s m. Sports a nd Culture a nd O t h e r s- C of A ( C I V) No 29/97 quotes Baxter: Administrative L aw p.587 w h e re the learned author says: "Since natural justice seeks to p r o m o te an objective and informed decision, it is important that it be observed prior to the decision. O ne a decision h as b e en reached in violation of natural justice, e v en if it has not yet b e en put into effect, a subsequent hearing will be no real substitute: o ne has then to do m o re than merely present one's case and refute the opposing case - o ne also has to convince the decision- m a k er that he w as w r o n g. In a sense the decision-maker is already prejudiced." In my view, it does not help the situation that the applicant replied this letter also annexing a letter written by her attorneys; her reply cannot be taken as a waiver of the right to m a ke representations with regard to the withdrawal itself Mr Ntlhoki then raised an ingenious submission to the effect that assuming that party m e m b e r s h ip w as a pre-requisite to appointment under section 5 (2) then, so he submits, the second respondent by appointing the applicant in full k n o w l e d ge of her party allegiances, waived the right or benefit under Section 5 (2). In the case of Eagle Insurance C o. L td vs B a v u m a- 1985 (3) SA 42 it w as held that:- "It is a well established principle of our l aw that a statutory provision e n a c t ed for the special benefit of a ny individual or b o dy m ay be w a i v ed by that individual or b o d y, provided that no public interests are involved. It m a k es no difference that the provision is c o u c h ed in p e r e m p t o ry terms. T h is rule is expressed by the m a x im quilibet potest r e n u n t i a re j u r p ro se i n t r o d u c t o" - a n y o ne m ay r e n o u n ce a l aw m a de for his special benefit. It is for the individual or b o dy intended to be benefited by the statutory provision in question to w a i ve its p e r f o r m a n ce a nd it is n ot o p en to another p e r s on (not intended to be benefited) to insist that the statutory provision be observed." In the case of S e k a u tu (supra), L e h o h la J. h as m o st wisely p ut it thus:- "It is c o m m on k n o w l e d ge that l aw c o u ld scarcely be of assistance to those w ho sleep on their rights." Lastly, the court m u st m a ke it very clear that matters political are suitably ventilated in the political fora a nd the courts of l aw are not a l w a ys appropriate channels in this regard b e c a u se a political c o n v e n i e n ce a nd justice do not often go h a nd in h a n d. To invite the courts of l aw into w h at is in fact a political tussle or debate is b o th unfair a nd intrinsically b ad b e c a u se these courts could e nd up attracting partisan labels. Politicians h a ve a duty to p ut their h o u s es in order a nd not rest their h o p es in the courts to solve their political p r o b l e m s. A matter s u ch as the suit before court could indeed h a ve b e en timeously inquired into a nd the p r o b l em r e m e d i ed by 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 respondent. O ne c an e v en go on to say that it w as not the function of the Minister of L aw a nd Constitutional Affairs or the I PA to h a ve questioned the party credentials of the applicant w i t h o ut risking interfering w i th the internal affairs of the s e c o nd respondent. W i t h o ut d e n y i ng t h em f u n d a m e n t al access to justice a nd protection of the l aw (Constitution, section 1 9 ), political parties are the best j u d g es a nd guardians regarding their o wn interests. It w o u ld be officiousness for the courts to decide w ho should represent a particular political party in the Interim Political Authority w h en a deliberate party decision h as b e en m a de to appoint a particular person as representative. T he court h as not b e en told h ow the applicant c a me to be appointed representative of the s e c o nd respondent- for e x a m p l e, w ho m o v ed her n a m e, w ho s e c o n d e d, w h e t h er the executive c o m m i t t ee of the s e c o nd r e s p o n d e nt sat a nd a p p r o v ed her n a m e, or w h e t h er her a p p o i n t m e nt w as surreptitiously m a d e; we only h a ve the uncontroverted statement by applicant in her f o u n d i ng affidavit that s he w as "duly a nd lawfully appointed thereto by s e c o nd respondent", we also h a ve a L e s o t ho G o v e r n m e nt Gazette n o . 1 17 of 1 9 98 w h i ch is still extant. In passing it should be m e n t i o n ed that the " no difference a r g u m e n t" h as not b e en considered at all by this court in deciding the considerations w h i ch u n d e r p in the audi rules (see Gauntlett J. A. in M a t e b e si vs D i r e c t or of I m m i g r a t i on - C of A ( C I V) 2 of 1 9 9 6. T he s e c o nd respondent, despite the decision in this proceedings, h as ultimate p o w er to w i t h d r aw applicant's n a me f r om the I PA after h a v i ng afforded her a hearing. T he issue of mis-joinder of first respondent w as raised in limine by Mr M a t s au in relation to costs. It is c o m m on cause that the first respondent is the president a nd part of the National Executive C o m m i t t ee of the S e c o nd respondent a nd w h a t e v er acts he p e r f o r m e d, he did so in his official capacity. O n ce the s e c o nd respondent h ad b e en cited, the president of the party w as necessarily by implication also cited. T he act of a p p o i n t m e nt of applicant is alleged to h a ve b e en p e r f o r m ed by the s e c o nd respondent a nd his C o m m i t t ee as well as p e r f o r m a n ce of the purported withdrawal. In my v i ew it w o u ld be unconscionable a nd inequitable to b u r d en the first respondent personally with costs. In the circumstances, I hold that the first respondent o u g ht not to h a ve b e en joined as a party to the proceedings in his personal capacity. T he position w o u ld be otherwise if the decision to appoint a representative a nd that to w i t h d r aw rested u p on the leader or president of the s e c o nd respondent. T he application against h im is dismissed with costs. T he rule is h o w e v er confirmed in terms of the P r a y er 2(a) a nd (b) in the N o t i ce of M o t i on with costs against the s e c o nd respondent only S. N. PEETE J U D GE For Applicant : Mr Ntlhoki For 1st, 2nd and 4th Respondents : Mr Matsau