Redeby v National Executive Committee of the Basutoland Congress Party and Others (CIV/APN 159 of 98) [1998] LSCA 42 (14 May 1998)

CIV/APN/159/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- M A M O N K I K H A L E M A R E D E BY APPLICANT and NATIONAL EXECUTIVE COMMITTEE OF THE BASUTOLAND CONGRESS PARTY 1ST RESPONDENT BASUTOLAND CONGRESS PARTY 2ND RESPONDENT INDEPENDENT ELECTORAL COMMISSION 3RD RESPONDENT M/S LEHLOENYA 4TH RESPONDENT REASONS FOR JUDGMENT Delivered by the Honourable Acting Mr Justice S. N. Peete on the 14th M ay 1998 This ex parte application w as first placed before me on Saturday the 18th April, 1998 as an urgent matter and having read papers filed of court and having heard Mr Phafane for the Applicant, I granted an interim order which w as couched in the following terms:- 1. That the Rules of this Court concerning period of notices and service of process are hereby dispensed with on account of the urgently of this matter. 2. That a Rule Nisi be hereby issued returnable on the 27th day of April 1998 at 9.30 am calling upon the Respondents to s h ow cause if any w hy the following order shall not be m a de final, to wit- (a) T he purported submission of the Fourth Respondent's n a me as the Second Respondent's candidate in the constituency of Matsieng N u m b er 44 for the 1998 general elections shall not be declared unlawful, irregular, unconstitutional, null and void and of no legal force and effect as well as fraught with procedural and substantial injustice and impropriety; (b) T he first Respondent shall not be restrained and interdicted from submitting the n a me of fourth Respondent as a candidate of second Respondent in the constituency of Matsieng N u m b er 44 to the third Respondent pending the finalisation hereof; (c) T he third Respondent shall not be restrained and interdicted from nominating and/or confirming the fourth Respondent as a candidate of the second Respondent in the constituency of Matsieng N u m b er 44 for the forthcoming general elections; (d) The Applicant shall not be declared the lawful and duly elected candidate of second Respondent in the constituency of Matsieng N u m b er 44 for the forthcoming general elections; (e) The first, second and fourth Respondents shall not be ordered to pay costs hereof; (f) T he Applicant shall not be granted further and/or alternative relief. It w as ordered that Prayer 1, 2 (b) and (c) operate with immediate effect as an Interim Order pending the finalization of this application. It was c o m m on cause that the 2 0* April 1998 had been declared per Gazette 19 of 1998 the Nomination D ay for the purpose of the forthcoming General Elections due to be held on the 23rd M ay 1998. On the 27th April 1998 the rule was extended by my Brother Maqutu J. to the 28th April 1998, on which day it was again extended to the4t hMay 1998. Onthe4*May,therule was again extended to the 5th M ay 1998. The matter was argued before me therefore on the 5th M ay 1998 and counsel started their arguments at 4.30 p m. and were heard by me until 8 pm or so. On the morning of the 6th April, 1998 I made a following order and intimated that my reasons would follow. These n ow follow. The final Court Order reads: 1. The purported selection and submission of the n a me of the Fourth Respondent by the First Respondent herein as a candidate of the Second Respondent in the Constituency of M A T S I E NG No.44 be and is hereby declared null and void; 2. In view of one (1) above, the M A T S I E NG C O N S T I T U E N CY N O . 44 of the Second Respondent be and are hereby ordered to hold elections on the 9th M ay 1998 at Matsieng Pitso Ground at 9.00 am. to elect a Constituency Candidate for the second Respondent for the 1998 General Elections; 3. The elections aforesaid be and are hereby to be conducted under the supervision of P H O KA C H A O L A NA of the M a a ma Constituency, w ho must forth submit the result thereof to the Third Respondent for processing; 4. This Order be and is hereby to be served forthwith upon P H O KA C H A O L A N A, F I R ST and S E C O ND R E S P O N D E NT and upon all branches of the M A T S I E NG C O N S T I T U E N CY N O . 44 of the Second Respondent; 5. The Applicant and Fourth Respondent be and are hereby free to stand for the contest in the aforesaid elections; 6. The First Respondent be and is hereby ordered to m a ke available and provide forthwith all Party Membership lists of the members of the Second Respondent in the M A T S I E NG C O N S T I T U E N CY No.44 to P H O KA C H A O L A N A; 7. The M e m b er Delegates to the aforesaid Constituency elections be and are hereby to be determined in accordance with Article 19.4of the Constitution of the Second Respondent. At the onset I am of the view that this application is of great importance since it touches upon a fundamental h u m an right guaranteed by the Lesotho Constitution. Section 20 thereof reads in part- "(1) Every citizen shall enjoy the right - (a) to take part in the conduct of public affairs directly or through freely chosen representatives (b) to vote or to stand for election at periodic elections under this Constitution under a system of universal and equal suffrage and secret ballot." (Underlining my o w n) Section 2 thereof reads: "This Constitution is the supreme law of law and if any other law is consistent with this Constitution, that other law shall, to the extent of the inconsistency be void" To this one m ay add that the Section also applies to acts, directives done or emanating from any other source or authority in Lesotho. T he Constitution of the Second Respondent and party circulars and directives m a de by the First Respondent must necessarily therefore be read, considered and interpreted in the light and context of the provisions of the Lesotho Constitution; to do otherwise would be to permit instances of violations of those very sacred fundamental rights which our constitution seeks to protect and guarantee. This court therefore has p o w er to determine the consistency or inconsistency of any act, provision or directive m a de by any body public or private to ensure that the contents thereof accord with the principles of the Constitution (Constitution -. Section 22; Rivett - Carnac v Wiggins - 1997 (3) SA 80). It is a fundamental right to be enjoyed by every citizen of Lesotho to engage in elections under a system of universal suffrage and also to choose freely their representatives in Parliament and other public bodies. In the present application, the Applicant is a female adult w h o se marital status is not clear from her founding affidavit. It is not clear whether she is a married w o m an and if so whether she is married in or out of community of property with marital power excluded; we don't k n ow if she is a widow. In their answering affidavit, the 1st, 2nd and 3rd Respondents raised in limine the issue of locus standi in judicio in that the Applicant being a married w o m an initiated these proceedings without the necessary assistance of her husband. T he matter w as however not pursued during argument, since this court had just recently given a ruling on a similar issue in CIV/APN/158/98, wherein after considering all authorities cited by Mr Phafane, the Court w as of the view that a married w o m an had locus standi (sui generis) in electoral proceedings and that this w as an exception to the c o m m on law principle that a married w o m an m ay not sue unassisted by her husband. E v en the 1 8 - 21 age group are regarded as majors for the purposes of the electoral proceedings (Alufsen v Klisser - 1959 (3) SA 351). But the nature of this locus standi of course depends on the Electoral law and its provisions. This court therefore ruled that the Applicant, married as she is like in the instant application, has locus standi in judicio to bring these proceedings as m e m b er of the Second Respondent unassisted by her husband and m o re so because, as Mr Phafane correctly submitted, her husband later ratified her locus standi in the suit in his affidavit supporting her replying affidavit. There w as however no application either on notice or from the bar to have the husband's affidavit struck off as an improper or irregular proceeding (Rule 30). As regards the issue of dispute of fact - also raised in limine - the court decided not to treat it separately from the main issues of the case. It w as submitted on behalf of the contesting Respondents that there were serious disputes of fact which could not be decided on papers filed of record; also raised w as the issue of non-disclosure of material facts by Applicant. As regards the dispute of fact, the relevant rule is Rule 8 (14) which reads:- "(14) If in the opinion of the court the application cannot properly be decided on affidavit the court m ay dismiss the application or m ay m a ke such order as to it seems appropriate with a view to ensuring a just and expeditious decision. In particular, but without limiting its discretion, the court m ay direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end m ay order any deponent to appear personally or grant leave for h im or any other person to be subpoenaed to appear to be examined and cross-examined as a witness, or it m ay order that the matter be converted into a trial with appropriate directions as to pleadings or definition of issues, or otherwise as the court m ay d e em fit. The leading case which laid the trite principle is that of Room-Hire C o m p a ny (Pty) Ltd vs Jeppe Street Mansions 1949 (3) SA 1155 (T) where Murray A. J. P. stated at page 1166: "In my view, once the absence of such dispute is apparent, the Applicant is entitled as of right to have his relief given h im speedily and cheaply on affidavits together with the employment of Rule 9 (our Rule 8). T he only discretion which the Court, in my view, has, arises w h en the dispute of fact is s h o wn (by respondent) to exist and it is called upon to decide upon employing Rule 9, on one hand, and on the other dismissing the application or direct trial." Another important decision on this regard matter is Plascon-Evans Paints Ltd vs V an Riebeeck Paints 1984 (3) S A 623 which also laid d o wn the guidelines that is, in deciding whether a dispute of fact exist, the respondent's answering affidavit must be closely looked at to determine whether such dispute is material, bona fide and genuine; such dispute must be such that the case cannot be determined without resort to oral evidence called in terms of the provisions of Rule 8 (14) - see also Peterson vs Cuthberth & Co (Pty) Ltd 1945 AD 420 at 428 and Soffatiorno v M o u ld 1956(4) SA 150 and Luster Products Inc vs Magic Style Sales C C- 1997 (3) SA 13. As regards the issue of non-disclosure, the inquiry must be whether the fact that is not disclosed in the founding papers of the Applicant is of a material nature and w as wilfully concealed by the Applicant. T he accepted rule is that the Applicant stands or falls by his founding affidavit in which he seeks to establish a clear right in the interdict proceedings. T he Applicant must hold the court in confidence especially in an exoarte application and, I m ay add, and disclose even those facts unfavourable to his case. See: Moletsane vs Moletsane CIV/APN/475/98 where Ramodibedi J. states:- "Indeed it is trite law that a litigant w ho approaches the court exparte has a duty to m a ke a full and honest disclosure to the court of every material fact which might influence the court in deciding to grant or to withhold the relief sought. That is k n o wn as the uberrima fides rule. See Seth Lieta vs Semakale Lieta C of A ( C I V ) N O .5 OF 1987: Philimon Ntsolo vs M u so Moahloli C of A ( C I V) N O .8 OF 1987. It is also trite law that in the event of the court being appraised of the true facts which had been withheld from it by the Applicant the Court has a discretion to dismiss the application on account of the non-disclosure," W h at are the material facts in the case before this court in the present application? W h at facts are admitted and not in dispute? W h at are those facts that are in dispute? W h at are the structures and procedures in the constitution of the second Respondent? In the present case, the Applicant avers in her founding affidavit that she is a m e m b er of the Second Respondent (the B C P) and a m e m b er of the Constituency Committee. To this averment the Secretary General w ho deposed on behalf of the First and Second Respondent, categorically denied that any party structure in a form of Constituency Committee existed in the Matsieng Constituency and that no such committee has been confirmed by the First Respondent ( N E C) in terms of Article 48.3 of the party Constitution. T he Applicant alleges that such committee w as elected on the 15th April, 1998 and that she, the Applicant w as elected as a candidate. It w as c o m m on cause during argument that the First Respondent issued a general Circular N EC Z/3-98 on the 26th January 1998 directing all sub-branches, branches and Constituencies to prepare for the election of candidates for the forthcoming general elections in Lesotho. This process involves election of delegates at sub-branch, branch and constituency levels. F o r ms L M 1 0, L M 11 and L M 12 were to be used in the process and were to be forwarded to the N EC for scrutiny and endorsement. This Circular also stipulated that elections at sub-branch, branch and constituency levels be held on 10/3/98, 11-12/3/98, and 14-15/3/98 respectively. In the Matsieng Constituency, it is quite clear that this party directive w as not complied with. T he First Respondent - apparently in desperation - issued another general Circular N EC Z/11-98 dated 1* April, 1998 addressed to the party structures to get on with the election of candidates and set an ultimatum date or deadline for the 9th April 1998 and the Circular stated "The National Executive Committee will appoint candidates for the constituencies which shall have been unable to elect before this date." In her affidavit, the Applicant has failed to prove that she w as elected in accordance with the provisions of the Party Constitution Article 31.13 - no F o r ms L M 1 0, L M 11 or L M 12 were produced in support of her candidature. She explains this by stating that she w as refused L M 12 forms after her election on the 15th April 1998. She has therefore failed to establish a clear right for this Court to protect (Setlogelo vs Setlogelo 1914 A. D.221). Mr Phafane, correctly in my view, ultimately conceded to this and therefore her claim that she be declared a lawful candidate for the Matsieng Constituency N o . 44 falls by the wayside. T he important issue to be determined in this application therefore is whether the selection of the 4th Respondent as a candidate of Matsieng Constituency by the First Respondent is lawful in being in accordance with the provisions of the constitution of the B C P. This inquiry involves the following: (a) whether the First Respondent has p o w er under the party constitution to select a constituency candidate where the party structures fail or are unable to elect one; (b) whether the Circular of the 1st April 1998 is consistent with the provisions of the National Constitution of Lesotho which - to repeat - reads:- "1. Every citizen of Lesotho shall enjoy the right - (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote or stand for election at periodic elections under this Constitution under a system of universal and equal suffrage and secret ballot." ( My underlining) T he question n ow is, w h en the First Respondent w as aware that the Matsieng party structures were indolent and sitting on their laurels, did it have authority under the B CP constitution to assume power to select a representative for the Matsieng constituency? Or, if not, did such an inherent power exist? T he Secretary General in his answering affidavit (Para 11) states categorically "whether the 4th Respondent w as elected or not, is immaterial. T he N EC w as entitled to select possible candidates after the 9th April 1998. T he N EC is so e m p o w e r ed to save the Party " Assuming for the purposes of argument that the B CP constitution has a specific article vesting in the N EC power so to select, it is my honest view that such a provision would not be held to be consistent with the fundamental provisions of section 20 of the Lesotho Constitution. Mr Matabane w as unable to point out an article in the n ew B CP constitution which vested such power in the N E C. N or w as the Court s h o wn any resolution of the Annual conference endorsing such procedure. Whilst the Courts of law should not and must not interfere in the governance of constituted societies like a political party, the Courts of law have a sacred duty to see that the fundamental rights and freedoms of the citizen are not abridged or compromised. T he third Respondent had lawfully appointed the 20th April as the Nomination D ay on which all political parties intend on contesting general elections were to present their respective candidates. H ow these candidates are to be elected within the party structures is an internal party matter but -I must emphasise - such selection or election is not a "closed house" and out of bounds w h en the fundamental provisions of the Lesotho Constitution are imperilled, or w h en principles of fairness and natural justice are compromised. According to the ultimatum date or dead-line of the 9th April 1998, the party structures were afforded unilaterally only 8 days to put their houses in order. W as this fair? I m a ke no decision on this except to say that its tantamount effect w as to abridge the right to vote of the B CP m e m b e rs of Matsieng constituency. In my honest view, the best that the First Respondent could do in the circumstances w as to cajole and exhort its party structures - indeed - till the early hours of the morning of the 20th April 1998! Is a selected representative a freely chosen representative? Honestly, not. T he party constitution is supreme indeed a instrument which must be respected as it presently stands by all party structures - N EC included - until amended by the Annual Conference of the Second Respondent. Supreme at it is, the Constitution of the party is however to be interpreted in a manner which is consistent with the provisions and principles of the Lesotho Constitution. E v en if there w as an inherent power "to save the party" this power cannot give N EC power to assume the basic right to select a representative for a constituency. To endorse such a selection would be to m a ke a s h am of free elections in a democratic country. T he Secretary General in his affidavit also states that" the N EC can reject a recommendation if it is satisfied that the person so r e c o m m e n d ed cannot uphold principles, aims and objectives of the Party." He also denies that in selecting the Fourth Respondent, the Party constitution has been violated. But - let me point out - there w as no such provision to violate. In my considered view, if an unacceptable candidate has been elected at the Constituency level, the N EC certainly has all right and indeed a duty - to order a re-election of an appropriate person but not to select such a candidate. I posed an hypothetical situation to Mr Matabane as follows: A s s u me a majority of the party constituencies b e c o me recalcitrant and elect and r e c o m m e nd candidates w ho are unacceptable to the majority in the N E C, can the N EC then assume power to select candidates as done in the present case? Will such candidates indeed be representatives freely chosen by the people? C o m m on sense, democracy and section 20 of the Constitution of Lesotho hold otherwise. Indeed, and this w as c o m m on cause that since January 1998 all w as not well in the Matsieng Constituency. T he Secretary General succinctly catalogues the so-called bogus and free-for-all conferences at sub-branch, branch and constituency levels and he attributes this to the absence of officially recognised party structures. It w as a sad situation at a crucial time wherein the party constitution w as sidelined with impunity by party m e m b e rs w ho in their eager race to be elected, ignored the party constitutional provisions, circulars, and directives. He attached F o r ms of L M 1 0, L M 11 and L M 12 which seemingly had forged signatures and dates. T he whole scenario w as riddled with fraud and chicanery. See Annexure " C ", " D ", " E ", "F", " G" and " H ". To illustrate this, in one amazing instance, the L M 12 for ' N e ko Sekhobe is dated 6th April 1998 and LM11's are dated in s o me cases 7/4/98. This could not be possible. No one could be elected at constituency level before being elected at branch level. This only points to concoction and fabrication which w as perpetrated in sheer haste by the contestants in Morija Constituency. It is clear that even in these sad circumstances, the n a me of the Fourth Respondent did not feature at all. She stands as a "selected candidate" w ho w as selected in order to save the Matsieng Constituency. As I have already pointed out, this Court cannot hold her candidature as lawful and proper for reasons outlined above. I therefore ordered that Prayer 2 (a) be confirmed. Since this Court had given an interim Order on the 18th April, 1998 restraining the Third Respondent from processing the n a me of the Fourth Respondent on the 20th April 1998, it seems to me that the Second Respondent would stand finally deprived of the Constitutional right to Geld its o wn candidate in the Matsieng Constituency, this court is of the view that in order to remedy this situation an additional order must be m a de to give a practical effect to the fundamental provisions of Section 20 of the Lesotho Constitution which guarantees to every citizen of this country that basic right "to take part in the conduct of public affairs directly or through freely chosen representatives" and "to vote and to stand for election at periodic election under this constitution under a system of universal and equal suffrage and secret ballot". Paternalistic selection of such representatives shall not be endorsed by our Courts of law. In the result I directed a reconvening of a re-election of the Matsieng Constituency to be processed soonest within the party structure under conditions that w o u ld ensure fairness and justice to all concerned. T he final order of this Court therefore stands thus: IT IS O R D E R ED T H A T: 1. The purported selection and submission of the n a me of the Fourth Respondent by the First Respondent herein as a candidate of the Second Respondent in the Constituency of M A T S I E NG N O . 44 be and is hereby declared null and void. 2. In view of one (1) above, the M A T S I E NG C O N T I T U E N CY N O . 44 of the Second Respondent be and are hereby ordered to hold elections on the 9th M ay 1998 at Matsieng Pitso Ground at 9.00 am. to elect a Constituency Candidate for the Second Respondent for the 1998 General Elections; 3. The elections aforesaid be and are hereby to be conducted under the supervision of P H O KA C H A O L A NA of the M a a ma Constituency, w ho must forth submit the result thereof to the Third Respondent for processing; 4. This Order be and is hereby to be served forthwith upon P H O KA C H A O L A N A, FIRST and S E C O ND R E S P O N D E N TS and upon all branches of the M A T S I E NG C O N S T I T U E N CY N O . 44 of the Second Respondent; 5. The Applicant and Fourth Respondent be and are hereby free to stand for the contest in the aforesaid elections; 6. The First Respondent be and is hereby ordered to make available and provide forthwith all Party Membership lists of the members of the Second Respondent in the M A T S I E NG C O N S T I T U E N CY N O . 44 to P H O KA C H A O L A N A; 7. The M e m b er Delegates to the aforesaid Constituency elections be and are hereby to be determined in accordance with Article 19.4 of the Constitution of the Second Respondent. 8. No order as to costs. I am fully aware that the Nomination Day was the 20th April 1998 w h en nomination of candidates of all parties contesting general elections were supposed to close. The elected candidate of the Matsieng Constituency will therefore be formally presented to the Third Respondent for processing i.e. to despite the fact that the nomination have legally closed. It is my view that the effect of the interim Court Order dated 18th April, 1998 w as to suspend the operation of Section 48 (3) (c) of the National Assembly Election Order No.10 of 1992 till this court finalised this urgent application. It should also be noted that the said section must be interpreted in such a manner as not to abridge the fundamental provisions of the Section 20 of the Constitution. That is, section 48 (3) (a) of the Electoral law cannot be interpreted as to be inconsistent with the Constitution of Lesotho. T he closing of nomination is, in my view primarily intended to enable the processing of data by the Independent Electoral Commission. Indeed if the Mastsieng Constituency had failed through internal prevarications to field a candidate timeously and there had been no intervening interim court order made by the High Court as a superior court of record, the I EC would be entitled to reject any belated nomination - regardless of reasons or causes therefor. It is c o m m on cause that a constituency re-elections were held on the 10th M ay 1998 under the supervision of Mr Phoka Chaolana (a B CP official a M a a ma Constituency). His report which w as presented to me by the Registrar on the 11th M ay 1998, shows that the Matsieng branches were represented as follows:- Morija = 10 delegates Mahloenyeng = 5 delegates Toloane Raphoka Matsieng = = = 1 delegate 2 delegates 6 delegates It also shows that both the present Applicant and the Fourth Respondent stood as candidates and that the result in these Matsieng Constituency elections are as follows: M a m o n ki Khalema Redeby - 17 votes (Present Applicant M a m a h ao Lehloenya - 7 votes (Fourth Respondent) The Applicant is therefore the lawful candidate for the Second Respondent in the Matsieng Constituency, and Mr Phoka Chaolana had also been directed to transmit forthwith to the third Respondent the said results for processing. For clarity and avoidance of doubt and bearing in mind the decision my Brother Ramodibedi J. in a similar case of Lesao Lehohla vs N EC - L CD and others - CIV/APN/160/98 (the judgment delivered on the 6th M ay 1998) where he declared the Applicant therein as the lawful and duly elected candidate of the Second Respondent in the Mafeteng Constituency in the forthcoming general elections and that the I EC shall reflect the same in its register of candidates, I also bold similarly and direct that the Applicant Masehloho Sehloho is the lawful and duly elected candidate of B CP the Second Respondent in the Matsieng Constituency N o . 44 in the forthcoming general elections and that the Third Respondent (the I E C) shall forthwith reflect the same in its register of candidates. By agreement of counsel, there is no order as to costs. I lastly must c o m m e nd Mr Matabane and Mr Phafane for their admirable professionalism in the handling of the rather delicate issues which were involved in the two successive applications that were often heard at untimely hours of the night. S. N PEETE ACTING JUDGE