Tsatsanyane and Others v Sekamane and Others (CIV\APN 348 of 98) [1998] LSCA 93 (4 September 1998)

1 CIV\APN\348\98 IN THE H I GH C O U RT OF L E S O T HO In (he Application of: M O E K E T SI T S A T S A N Y A NE M A R C E L L US B O F I H LA N K O E BE TSIETSI P H E N E T HI C H A R L ES L E C H E SA T A N KI M A F E T HE S E K O A LA T O L O A NE H. O M A N E NG K U T O A NE T L A LA L E T S O LO R A L I O T LO PHAKISI TSIEE B E N J A M IN P E K E C HE vs T J A O A NE S E K A M A NE M O L E B A T SI K H A I LE SEEISO S E H L O HO L E F E LA B O H L O KO T E B O HO K H O A T H A NE B A N N ET S E M A K A LE M O T H E PU M O T H AE M O F E L E H E T SI M O E R A NE L I T H A K O NG R A K O TI M O T S O A H AE T OM T H A B A NE 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 H E LD AT M A S E RU C O R AM : M L. L E H O H LA J G. N. M O F O LO J M M. R A M O D I B E DI J LEHOHLA J. J U D G M E NT 1st Applicant 2nd Applicant 3rd Applicant 4th Applicant 5th Applicant 6th Applicant 7th Applicant 8th Applicant 9th Applicant 10th Applicant 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent 8th Respondent 9th Respondent 10th Respondent 11th Respondent T h o u gh treated in the s a me p r o c e e d i ng matters w h i ch c a me for consideration by this Court can be classified into Four categories. (A) First is the matter of Tsiee Benjamin Pekeche who is opposed to Motsoahae T om Thabane and the 1lth respondent above. (B) Next are two matters of (I) the 1st applicant Moeketsi Tsatsanyane who is opposed to the 1st respondent Tjaoane Sekamane and the 1lth respondent; and of (ii) the 2nd applicant Marcellus Bofihla Nkoebe who is opposed to 2nd respondent Molebatsi Khaile. Both these applicants and respondents appear in separate proceedings as petitioners and respondents in civil applications numbered : CIV\APN\275\98 and CIVVAPN\274\98 respectively. © The penultimate category is of applicants third through ninth w ho are opposed to respondents third through ninth and the 1lth respondents. Likewise these applicants and respondents appear in separate proceedings as Petitioners and respondents in civil applications numbered : (i) CIV\APN\282\98 (ii) CIV\APN\281\98 (iii) CIV\APN\280\98 (iv) CIV\APN\279\98 (v) CIVVAPN\278\98 (vi) CIV\APN\277\98 (vii) CIV\APN\276\98 and (D) The last category consists of (I) CIV\APN\254\98 Morapeli Motaung vs Director of Elections and 3 Ors and (ii) CIV\APN\266\98 Michael Phoso Moketa vs Director of Elections and 3 Ors. Regarding this last category because of failure in communication the two matters in question w e re not called a nd consequently omitted w h e r e as the C o u rt h ad expressed the w i sh to deal with t h em along with cases in category (c) all of w h i ch are c o v e r ed in the urgent application b e i ng dealt with in the instant application. C o n s e q u e n t ly the C o u rt invited Mr M o s i to for the applicants in this C a t e g o r y, a nd Mr Matsau ( w ho a p p e a rs for r e s p o n d e n ts in all categories) to point out this regrettable o m i s s i on w h e r e u p on it w as d e c i d ed to p o s t p o ne the hearing of those matters to 4 - 9 - 98 after delivery of this J u d g m e n t. W i th regard to applicant 10 P e k e c he in C a t e g o ry A w h i ch strictly s p e a k i ng doesn't h a ve to do with grievances relating to the counting of ballots the C o u rt w as persuaded to grant the application for its withdrawal f r om hearing at this stage of the proceedings. R e g a r d i ng T s a t s a n y a ne a nd Nkoebe cases in C a t e g o ry B the applications w e re for leave to w i t h d r aw applications for c o n d o n a t i on of late p a y m e nt of security for costs in the respective applicants' petitions. It w as c o m m on cause that b e c a u se p a y m e nt of security for costs h ad not b e en effected timeously ex l e ge i.e. in t e r ms of section 1 0 6 ( 3) of O r d er N o. 10 of 1 9 92 ( T he National A s s e m b ly Election O r d e r) the petitions h ad lapsed. T he said provision reads : 'If an order u n d er subsection (1) is not c o m p l i ed w i th within the specified period, the election petition is taken to h a ve b e en w i t h d r a w n" Mr Phoofolo accordingly p r a y ed for w i t h d r a w al of the application for c o n d o n a t i on of the delay in p a y i ng security for costs in respect of the relevant petitions. T he Court's decision on this application shall a p p e ar t o w a r ds the e nd of this j u d g m e n t. Suffice it for the m o m e nt to note w i th b e w i l d e r m e nt that the applicants h a ve not filed a ny affidavits in support of their application for the said w i t h d r a w a l. It is to be a s s u m ed that they t o ok it that it is e n o u gh that a notice of withdrawal w as filed on their behalf by their attorney. Be that as it m a y. It s h o u ld h o w e v er be indicated that Mr Matsau did not o p p o se the application for this w i t h d r a w al s a ve that he insisted on the costs b e c a u se the application for condonation h ad b e en o p p o s ed thus putting his clients u n d er the necessity to incur costs. It r e m a i ns n ow to p r o c e ed to deal w i th the application w h i ch f o r ms the real core of this proceeding. As indicated earlier this application falls u n d er C a t e g o ry C. In t e r ms of the N o t i ce of M o t i on filed of record on 2 9 th A u g u st 1 9 98 the applicants applied for an order : (1) (2) (3) Dispensing with the periods of notice p r o v i d ed by the R u l es of Court a nd treating this matter as o ne requiring urgent attention; Authorising w i t h d r a w al of the (stated) petitions ( w h i ch at the time included T s a t s a n y a n e, N k o e be a nd P e k e c h e) Directing that the a b o ve m e n t i o n ed constituencies(sic) be included for inspection of the election material in relation to t h em by the P a n el of International Experts. ( 4) Granting Applicants further and\or alternative relief. (5) Prayer 1 to operate with i m m e d i a te effect. It should be n o t ed that w h en a single m e m b er of this C o u rt w as a p p r o a c h ed in C h a m b e rs by the applicant's counsel on 31st A u g u st it w as m a de plain to h im that this C o u rt sits as a panel therefore it w o u ld require t wo other m e m b e rs of the panel to decide w h en the matter c an be heard. After consultations with my t wo Brother J u d g es the C o u rt fixed 2 nd S e p t e m b er as the earliest suitable a nd convenient d ay for hearing this application. T he President of the P a n n el c o m m u n i c a t ed the information to the parties' legal representatives on the s a me d ay i.e. 31st A u g u s t, 1 9 9 8. T he applicants rely on the founding affidavit of their attorney Mr Haae Phoofolo w ho avers that he is authorised by the applicants to represent t h em in this Court. In paragraph 2 the deponent avers that "There is an International Panel of Experts w ho are investigating the conduct of the last Lesotho General Election of 23rd M ay 1 9 9 8. As part of the investigation the Panel will e x a m i ne the entire election material including the sealed ballot papers. I a n n ex hereto a c o py of the terms of reference of the said Panel of Experts as A n n e x u re " A ". H o w e v er according to l aw as it stands only constituency result (sic) w h i ch are not pending in the Court of disputed returns (sic) can be dealt with by the panel. In order to facilitate the dealing by the panel with the above mentioned petitions, they m u st be w i t h d r a wn from the a b o ve H o n o u r a b le Court, hence this application. I h a ve therefore for that reason b e en instructed to w i t h d r aw the a b o ve mentioned petitions". In 3 he avers " T he Counting of sealed ballot papers, envelopes a nd other material started today, and is to be completed t o m o r r ow the 30th A u g u st 1 9 9 8. It is for this reason that this matter is urgent. I am m a k i ng this affidavit in support of the prayers in the Notice of M o t i o n ". Mr M a t s au for the rest of the respondents stated that his instructions w e re not to o p p o se the application m a d e. A n n e x u re A to the a b o ve affidavit constitutes a nd is styled T he T e r ms of Reference for the Lesotho G r o up of Experts. T he terms are set out in this d o c u m e nt a nd their purpose is "to inquire into matters relating to the alleged irregularities in respect of the 1 9 98 national elections of L e s o t h o, including, but not restricted to alleged fraudulent acts in the compilation of the voters roll alleged irregularities in the d e m a r c a t i on p r o c e ss alleged irregularities in the counting of votes a ny irregularities in the reconciliation of votes cast w i th the voters roll a ny acts of v a n d a l i sm in respect of electoral materials 2. To m a ke r e c o m m e n d a t i o ns of S A D C, t h r o u gh its C h a i r p e r s o n, on possible solutions to the i m p a s se within fourteen d a ys of the initiation of the inquiry" It is c o m m on c a u se that an application for withdrawal as c o n t e m p l a t ed by the s e v en applicants is to be with leave of Court. T he rationale of this is n o ne other than to enable the public at large to k n ow the truth a nd receive p r o p er information c o n c e r n i ng the fate of serious allegations m a de a b o ut matters of great national interest. T h us Cullinan C J, as he then w a s, said "I c a n n ot but s ee therefore that w i t h d r a w al of an election petition, w h e t h er or not set d o wn for hearing, is a matter for the leave of the C o u r t ". S ee Civil Applications 1 48 a nd 2 40 of 1 9 93 a nd Election Petitions 1 82 to 2 06 a nd 2 08 to 2 10 of 1 9 93 at p a ge 8 3. N e e d l e ss to state leave w as refused not o n ly in respect of the particular c a se b e i ng h e a rd at the t i me b ut "in r e s p e ct of the t w e n ty petitions w h i ch ( h a d) n ot b e en set d o wn for h e a r i n g ". In motivating the application for his clients Mr Phoofolo m i n d f ul of the a b o ve d i c t u m, indicated that facts h a ve to be p l a c ed b e f o re this C o u rt in o r d er for it to c o n s i d er w h e t h er or n ot to grant the application. T he facts he relied on w e re an elaboration a nd the highlighting of the contents of A n n e x u re A t a k en a l o ng w i th his o wn a v e r m e n ts in p a r a g r a ph 2 of his affidavit referred to a b o v e. E v en generally s p e a k i ng a m a t t er of serious c o n c e rn w h i ch the C o u rt invited b o th attorneys to a d d r e ss it on in this application w as w h e t h er there c o u ld be a ny propriety or i n d e ed p r u d e n ce in the C o u rt gratuitously ousting its jurisdiction in a m a t t er of s u ch g r a ve national i m p o r t a n ce as h as b e en alluded to a b o ve e v en if the parties to the application are a g r e ed that there be a w i t h d r a w a l? A related q u e s t i on w as w h e t h er in the n a me of political e x p e d i e n cy the p o w er of this C o u rt c an be s u b o r d i n a t ed to that of a ny informal C o m m i s s i on or P a n e l? T he a n s w er w as in part to be f o u nd in A ct N o. 13 of 1 9 98 N a t i o n al A s s e m b ly Election ( A m e n d m e n t) A ct 1 9 98 a m e n d i ng National A s s e m b ly Election O r d er 1 9 92 foot-noted as A ct N o . 10 of 1 9 9 2. Mr Phoofolo urged that the spirit of this A ct should be given effect to. He submitted that the reason behind the enactment should be preserved. As indicated earlier the a m e n d m e nt w as enacted to enable the Panel of Experts in performing their duties to also do the counting of the electoral ballots. Section 9 7A p r e c e d ed by the heading "Inspection of election d o c u m e n ts by Panel of International E x p e r t s" provides : "Notwithstanding section 9 7, the Independent Electoral C o m m i s s i on shall, in the public interest, allow the Panel of International Experts designated to audit the 1 9 98 L e s o t ho General Elections to inspect ballot papers, ballot envelopes or counterfoils or a ny other relevant d o c u m e n ts used in such elections as the Panel of International Experts m ay require in respect of a ny Constituency of the National A s s e m b ly except a Constituency of w h i ch an election petition is currently pending in the H i gh Court". Mr Phoofolo if s o m e w h at bearing an expression of puzzlement as to the question put initially did indeed ultimately appreciate that there doesn't s e em to be an exception to prohibition or restriction that the a b o ve legislation appears to h a ve imposed on the Panel of International Experts in respect of "a constituency of w h i ch an election petition is currently pending in the H i gh C o u r t" (italics supplied). It is thus the opinion of this Court that h ad the legislature intended to h a ve election petitions pending before the H i gh Court r e m o v ed f r om jurisdiction of the Court it w o u ld h a ve m a de a further proviso or exception to that effect. B ut consistently with provisions of the Constitution a nd the H i gh C o u rt A ct w h i ch guarantee the i n d e p e n d e n ce of the Judiciary the legislature in the a b o ve a m e n d m e nt f o u g ht s hy of e n c r o a c h i ng on a ny of this C o u r t 's p o w e r s. It thus b e h o v es the Judiciary itself to jealously guard its p o w e rs a nd in the p r o c e ss v i ew w i th disfavour a ny attempts at m a k i ng inroads on its i n d e p e n d e n c e. It w o u ld therefore be u n w i se for the Judiciary to divest itself of the important function that it is enjoined to p e r f o rm by the Constitution of this country a nd the sanctity of the Judicial O a th to w h i ch J u d g es of this C o u rt subscribe. In the light of these considerations it is logical that the t wo questions p o s ed earlier w o u ld h a ve to be a n s w e r ed in the negative. T he C o u rt h as taken into a c c o u nt the fact that A ct N o. 13 of 1 9 98 w as published on 27th A u g u s t, 1 9 98 a nd that as of that date the petitions in C a t e g o ry C w e re currently p e n d i ng before it. Mr Matsau's s u b m i s s i on therefore h ad merit that their w i t h d r a w al w o u ld not put these petitions outside the t e r ms of the prohibition in the a b o ve A c t. T he learned C o u n s el pointed out that on the basis of w h at a p p e a rs to be the plain m e a n i ng of w o r ds contained in that A c t, it w o u ld s e em that e v en if the C o u rt w e re to allow w i t h d r a w al of these petitions of 3rd to 9th applicants that w o u ld still not assist in bringing those petitions for scrutiny by International P a n el of E x p e r t s. A n o t h er point raised by Mr Phoofolo w as that in effect t h e se petitions are no longer p e n d i ng before C o u rt as c o n t e m p l a t ed in the l aw b e c a u se it is n ow m o re t h an thirty d a ys since the petitions h a ve b e en p e n d i ng b e f o re C o u r t. F or this proposition he r e p o s ed reliance on S e c t i on 1 0 4 ( 4) of the N a t i o n al A s s e m b ly E l e c t i on O r d er 1 9 9 2. T he relevant p r o v i s i o ns of s u b s e c t i on 4 r e ad - " T he C o u rt shall t a ke all r e a s o n a b le steps to e n s u re that (a) ( b) p r o c e e d i n gs in relation to the petition b e g in w i t h in 30 d a ys after the petition is l o d g ed : a nd the C o u r ts final orders in relation to the petition are g i v en w i t h in 30 d a ys after the e nd of the p r o c e e d i n g s ". It e s c a p es this C o u rt h ow s u ch a proposition c an be c o n t e m p l a t ed at all. T he proposition a p p e a rs to be self-contradictory in that the applicants h a ve a p p r o a c h ed this C o u rt for leave to w i t h d r aw their petitions. If i n d e ed their petitions are n ot p e n d i ng w hy s h o u ld s u ch l e a ve be s o u g h t? T he C o u rt w i s h es to a d o pt Mr Matsau's s u b m i s s i on for its s i m p le a nd y et masterful a p p r o a ch to this rather startling proposition. T he C o u rt w i s h es to q u o te Mr Matsau's s u b m i s s i on w o rd for w o rd as f o l l o ws : "I d i s a g r ee w i th my l e a r n ed friend's interpretation of section 1 0 4 ( 4 ). He s a ys since the petitions didn't go on after 30 d a ys of the crucial date then they w o u ld h a ve lapsed. M o st of t h e se h e re w e re l o d g ed on 2 9 - 0 6 - 9 8. I s u b m i t: this point w o u l d n 't be t a k en by a Petitioner. A petitioner c a n n ot be h e a rd to s ay y ou h a v e n 't dealt w i th my petition in 30 d a ys It couldn't h a ve b e en the intention that this so it h as lapsed. s u b s e c t i on w o u ld be u s ed by the petitioner against the petitioner h i m s e l f. T he C o u rt attaches d ue significance to the u se of the w o rd r e a s o n a b le as a p p e a rs in s u b s e c t i on ( 4) in r e g a rd to steps it is required to t a ke in o r d er to e n s u re acts c o n t e m p l a t ed in clauses (a) a nd ( b) of the said subsection. P r o p er consideration of this subsection w i th d ue w e i g ht b e i ng a c c o r d ed to the w o rd r e a s o n a b le w o u ld suffice to indicate that this s u b s e c t i on w as n ot e n a c t ed to a c h i e ve absurdity but rather to a v o id it. C o n s i d er for instance if in all t he 80 C o n s t i t u e n c i es o ne or m o re of the c a n d i d a t es w ho w e re n ot r e t u r n ed l o d g ed their Petitions w h i ch are to be h e a rd by o ne J u d ge or a p a n el of J u d g es constituting o ne C o u r t; a nd if those petitions w e r e, w i th luck, to be h e a rd at the rate of o ne p er d a y, t h en this w o u ld m e an at least 80 d a ys w o u ld h a ve to be s p e nt b e f o re all s u ch petitions could be heard. N e e d l e ss to s ay on the 3 0 th d ay there w o u ld still be outstanding for hearing at least 50 petitions w h i ch if the proposition a d v a n c ed w e re to hold w o u ld h a ve lapsed. This result surely cannot be gleefully w e l c o m ed as w h at the section contemplated. T he s u b m i s s i on in support of this proposition is accordingly rejected on the score of absurdity. F u r t h e r m o re the C o u rt derives c o m f o rt f r om the fact that w h i le on the o ne h a nd in section 1 0 6 ( 3) of the s a me National A s s e m b ly Election O r d er 1 9 92 the section specifically sets out an a d v e r se c o n s e q u e n ce to the petitioner for failure to c o m p ly timeously, n a m e ly that the "election petition is t a k en to h a ve b e en w i t h d r a w n" on the other h a nd in section 1 04 it is not spelt out w h at a d v e r se c o n s e q u e n ce w o u ld befall the petitioner. H ad a ny c o n s e q u e n ce b e en c o n t e m p l a t ed at all in section 1 0 4 ( 4) then likewise it w o u ld h a ve b e en clearly spelt out that if a petition h as not b e en p r o c e e d ed with within 30 d a ys it w o u ld be d e e m ed to h a ve lapsed. If that w e re the c a se m o re than seventy five percent of election petitions h e a rd in 1 9 93 w h e re the C o u rt sat for m o re than four m o n t hs w o u l d n 't h a ve b e en h e a rd as they w o u ld h a ve lapsed. This Court n e ed not belabour the point that it a n n o u n c ed on 1 0 - 0 7 - 98 that the session for hearing election petitions started that d ay a nd in a j u d g m e nt in CIV\APN\283\98 Moeketsi Tsatsanyane and Petitioners as per Annexure A vs Litsitso Sekamane & 3 Ors (unreported) at p.4 referred to " Petitions Session on 10th July, 1998 covering all Elections Petitions filed before the dateline falling due at the end of June 1998". the order made by this Court at the opening of the For the reason that following from the above extract the actual start of the session was declared as well as this Court making it plain in open Court that all other business scheduled before individual judges would be set aside to give priority to the election Petitions it cannot seriously be contended that the Court should among other things have set these matters down itself, in an attempt to answer the question why the petitioners should have waited this long only to embark at the last minute to seek an urgent relief in a matter where the urgency appears to have been self-inflicted. Among things minuted in the Court's file on that day i.e. 10th July appear the following : " Parties' legal representatives express fears concerning the likelihood of the Petitions session being interrupted by impending Court of Appeal Session coupled with their wish to brief Senior Counsel". The Court recalls distinctly giving warning that such counsel should accommodate themselves within the Court's programme on account of the priority being accorded to hearing the election petitions. In this Court's v i ew w h en the m o st important step h as b e en t a k en by it to r e n d er itself available at all times to hear the election petitions the petitioners or i n d e ed parties are not relieved of their obligation to set d o wn the petitions for hearing. T he application in category (c) to w i t h d r aw the election petitions f r om the H i gh C o u rt is refused there being no order as to costs b e c a u se there hadn't b e en a ny opposition to the application in the first place. In C a t e g o ry ( A) T s i ee B e n j a m in P e k e c he is a l l o w ed to w i t h d r aw his n a me f r om the list of applicants in C a t e g o ry © as it turned out that it w as w r o n g ly included. T h e re will be no order for costs as in a ny c a se that application w as not o p p o s e d. In C a t e g o ry ( B) relating to applicants M o e k e t si T s a t s a n y a ne a nd Bofihla N k o e be the applications for w i t h d r a w al of applications for c o n d o n a t i on of late p a y m e nt of security for costs are allowed. B ut b e c a u se the condonation applications w e re o p p o s ed there will be an order a w a r d i ng costs against t h e m. Section 107(1) of the National A s s e m b ly Election O r d e r, 1 9 92 provides that " At the e nd of the trial of an election petition, the H i gh C o u rt shall determine whether the petition should be upheld or dismissed in w h o le or in part. F or that purpose the Court m a y, subject to this section, m a ke such of the following orders as it considers appropriate (a) an order declaring the candidate w ho w as returned as elected to h a ve b e en validly elected". T h us because ex l e ge their election petitions are taken to h a ve b e en w i t h d r a wn thus as far as they are concerned this a m o u n ts to the e nd of their trials the Court in exercise of its p o w e rs in terms of section 107(1 )(a) finds it fitting to m a ke a consequential order declaring T j a o a ne S e k a m a ne a nd Molebatsi Khaile the candidates w ho were returned as elected to h a ve b e en validly elected. A nd it is so ordered. M. L. L E H O H LA Judge of the High Court I agree : M . M. R A M O D I B E DI Judge of the High Court I am not in c o n c u r r e n ce with my Brothers regarding particularly consequential relief. T he r e a s on b e i ng that w h e re a C o u rt of l aw d i s m i s s es an action or an application or as in this c a se an application or petition d e e m ed to h a ve lapsed, for me the c o n s e q u e n c es are o b v i o u s. I do not think it w as or w o u ld h a ve b e en in t he c i r c u m s t a n c es as far as I am c o n c e r n ed p r u d e nt to h a ve m a de a specific p r o n o u n c e m e nt g i v en the c i r c u m s t a n c es of these petitions. O t h e r w i s e, e x c e pt for this, I agree w i th my l e a r n ed B r o t h e r s. My r e a s o ns will follow. G. N. M O F O LO J u d ge of the H i gh C o u rt D a t ed this 4th d ay of S e p t e m b e r, 1 9 98