Motaung and Others v Director of Elections and Others (CIV/APN/254/98; CIV/APN/266/98; CIV/APN/271/98; CIV/APN/353/98) [1998] LSCA 96 (21 September 1998)

IN T HE HIGH C O U RT OF L E S O T HO In the matter between MORAPELI MOTAUNG MICHAEL P. M O K E TA L E K H O O A NA JONATHAN and CIV/APN/254/98 CIV/APN/266/98 CIV/APN/271/98 CIV/APN/353/98 1st Applicant 2nd Applicant 3rd Applicant DIRECTOR OF ELECTIONS INDEPENDENT ELECTORAL COMMISSION THE ATTORNEY GENERAL LILLO H L O MA LITŠITSO S E K A M A NE M O T Š O A NE NYELIMANE 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent Held at Maseru Coram : Lehohla J Mofolo J Ramodibedi J JUDGMENT Ramodibedi J. In this matter the applicants seek relief in the form of a declaratory order couched in the following terms : " 1. Declaring that the petitions filed by applicants on the 16th day of June 1998 and 1st day of July respectively have lapsed and therefore no longer pending. 2. Directing respondents to pay costs hereof only in the event of opposition hereto. Such further and/or alternative relief It will be observed at the outset that what makes this application extremely unusual and indeed novel is the fact that it is m a de against the applicants' o wn interests to pursue election petitions filed by none other than themselves. It thus puts the bona fides of the applicants in the whole exercise into question. Indeed in order to fully appreciate the bona fides or otherwise, as well as the motivation of the application in this matter, it is necessary to give a little background to the litigation. Stripped to its bare essentials, the factual background is as follows: Following the General Elections which were held on the 23rd M ay 1998 the applicants w ho had all lost as candidates for the Basotho National Party ( B N P) filed with this Court election petitions challenging the outcome and/or result of those elections in so far as they were concerned. On the 1st day of September 1998 and while the election petitions in question were still pending before this Court the first two applicants Morapeli Motaung and Michael P. Moketa filed Notices of Withdrawal of their petitions with the Court. It is pertinent indeed to bear in mind that in each of the notices of withdrawal of the election petitions Mr. Maieane, attorney for the first two applicants in the instant matter, deposed as follows in paragraph 3 of his affidavit : "I have been instructed by the applicant to withdraw the above matter because of the agreement between S A DC and the government of Lesotho to recount the votes. I am informed that the constituencies which have cases before Court cannot be counted unless the matter is withdrawn." Meanwhile, as the judgment of this Court in CIV/APN/248/98 Moeketsi Tsatsanyane and 9 others v Tjaoane Sekamane and 10 others clearly shows, similar notices of withdrawal were filed by other petitioners. These were argued on the 2nd September 1998 in the presence of Mr. Maieane and the present applicants' counsel A dv Mosito. Needless to say that judgment itself was delivered by this Court in the presence of the latter on the 4th September 1998 and the application to withdraw the election petitions in question from this Court was duly dismissed. Having seen the fate that had befallen the other petitioners, what then happened was a change of strategy by the first two applicants in particular in the instant case: they together with the 3rd Applicant n ow filed the present application on the 4th September 1998 alleging that their election petitions had "lapsed and therefore no longer pending." This indeed is one of the crisp questions for determination by this Court - one other question being, of course, whether this is a fit case for a declaratory order. It will no doubt be convenient at this stage to refer to Section 104 (4) (a) of the National Assembly Election Order 1992 on which this application is purportedly based. That section reads as follows : "The Court shall take all reasonable steps to ensure that - (a) proceedings in relation to the petition begin within 30 days after the petition is lodged." It will be observed that in his founding affidavit Morapeli Motaung w ho has deposed an affidavit on his o wn behalf as well as on behalf of second and third applicants has merely recited the wording of Section 104 (4) (a) quoted above. He states as follows in paragraph 4 of his affidavit: "4. This Honourable Court did not take "all reasonable steps", let alone any, at all, to ensure that the petitions were heard within 30 days after the petitions were lodged. I respectfully submit that the petitions have lapsed since they were not heard within that statutory mandatory period." Significantly Morapeli Motaung has not substantiated his allegation in paragraph 4 of his affidavit. He has not attached a supporting affidavit from someone w ho works in this Court to substantiate the allegation that the Court did not take "all reasonable steps" to ensure that the petitions were heard within 30 days after they were lodged. Indeed since it is c o m m on cause that he does not himself work in this Court it would be absurd to imagine that Morapeli Motaung could have personal knowledge of the serious allegations he has m a de against this Court. In the circumstances the conclusion is inevitable therefore that the applicants have failed to prove as a fact that this Court did not take "all reasonable steps" to ensure that the petitions were heard within 30 days after they were lodged. That is sufficient to dispose of the matter against the applicants but one must proceed to examine h ow the matter stands in case this view be wrong. As earlier stated the nub of the case for the applicants is that their election petitions have lapsed simply by virtue of the fact, as it is alleged, that the Court did not take "all reasonable steps" to ensure that the petitions were heard within 30 days after lodging. Significantly the applicants have not referred the Court to any section in the National Assembly Election Order 1992 to the effect that in a situation alleged by the applicants the election petitions shall lapse. Significantly there are no penalties or consequences stipulated for that matter for failure by the Court to begin election petitions within 30 days after they have been lodged. Indeed it would be absurd for election petitions which are by their nature matters of national importance to be rendered nugatory merely because the Court itself failed to ensure that they began timeously. This could never have been the intention of the legislature. On the contrary the words "reasonable steps" appearing in Section 104 (4) (a) of the National Assembly Election Order 1992 seem to suggest that while election petitions are no doubt expected to proceed expeditiously the Court must nevertheless be governed by practical considerations. The Court has unfettered inherent power to control proceedings pending before it as best as it can. This in turn must entail judicial discretion which is so necessary for the Court to function properly and effectively. In fairness to A dv Mosito for the applicants he was constrained to concede, and properly so in the circumstances, that Section 104 (4) (a) on which the applicants rely does not say that the election petitions shall lapse simply because the Court fails to take all reasonable steps to ensure that their petitions are heard within 30 days after they have been lodged. There can be no doubt that if that was the intention of the legislature it would have expressed it in clear and unambiguous terms. Indeed this Court has already expressed itself in the same vein in Moeketsi Tsatsanyane and 9 others v Tjaoane Sekamane and 10 others (supra) and it is therefore strictly unnecessary to traverse the same area again here. It is indeed a cardinal principle of statutory construction that w h en a statute provides that something shall be done, or done in a particular manner or form, without stating expressly what shall be the consequences of non- compliance as is the case here, the Court must decide whether the statutory requirement is to be regarded - (a) as peremptory/imperative/mandatory, in which case all acts done contrary to the requirement will be null and void; or (b) as directory/permissive, in which case the acts done will not be a nullity. As Van Winsen A JA said in Maharaj v Rampersad 1964 (4) S. A. 638 A D. at 646 it has long been the law that whether the provisions are peremptory or directory is a matter of construction depending, as indeed it must, on the true intention of the legislature. It is again a well known canon of construction that if, when determining the scope and object of a provision, it is found that strict appliance of its terms would lead to injustice and if there is no express statement that the act shall be void for non compliance with the terms or conditions or indeed if there is no sanction for such non compliance as it is the case here then the presumption is that the provision is directory. That is the inevitable statutory construction that this Court must place on Section 104 (4) (a) of the National Assembly Election Order 1992 in the circumstances of this case and it is so held. It follows then that non compliance with this section is neither fatal nor will acts done thereunder be visited with nullity. Declaration of Rights Section 2 (1) © Of the High Court Act 1978 provides as follows: "The High Court of Lesotho shall continue to exist and shall, as heretofore, be a superior court of record and shall have, (a) (b) (c). In its discretion and at the instance of any interested person, power to inquire into and determine any existing future or contigent (sic) right or obligation notwithstanding that such person cannot claim any relief consequential upon the determination" (emphasis added). The word "discretion" used in the section clearly indicates that the High Court has a discretion in the matter which must however always be exercised judicially and not arbitrarily or capriciously. It is salutary to state that the question whether or not a declaration of rights should be granted in terms of this section must of course be examined in two stages namely: (1) the jurisdictional facts such as the requirements that the applicant must have a direct interest in the matter and a clear right capable of legal enforcement (either existing, future or contingent) or obligation which becomes the object of inquiry, must first be established. (2) After the jurisdictional facts have been established the Court must then decide whether on the facts, the case before it is a proper one for the exercise of its discretion. See for example Family Benefit Society v Commissioner For Inland Revenue 1995 (4)SA 120 at 124. As to (1) above the applicants have failed dismally to show that they have a direct genuine interest in the matter and a clear right capable of legal enforcement. As earlier stated the declaratory order which they seek namely that their petitions have lapsed is not supported by the National Assembly Election Order 1992. There is simply no such provision. Regarding stage (2) above it is pertinent to bear in mind the history of the matter as shown earlier. There can be no doubt that this application is an attempt to circumvent the decision of this Court in Moeketsi Tsatsanyane and 9 others v Tjaoane Sekamane and 10 others (supra) in which the Court refused to allow the election petitions to be removed from its jurisdiction and to be transferred to what has n ow become known as the Langa Commission - a Commission which, as we were informed as a matter of c o m m on cause, is for that matter an informal one, founded on political expediency. This Court cannot countenance its judgments being cynically circumvented as the applicants have attempted to do and on this ground alone the Court is entitled to exercise its discretion against the applicants. Moreover as pointed out earlier the bona fides of the applicants in this matter are in question. They started off by making very serious allegations regarding the conduct of the General Elections of the 23rd M ay 1998. While it is thus a matter of national importance for these allegations to be tested in a proper forum namely a Court of law such as this Court is empowered to do, the applicants have tried every technicality to wriggle out of the Court process. This, the Court is determined to prevent in the national interest as members of the public are entitled to know where the truth lies concerning the General Elections in question. Afterall there is precedent in the matter. See 1993 election petitions Mathaba and others v L e h e ma and others C1V/APN/182 To 206 and 208 to 210 of 1993 reported in Lesotho L aw Reports and Legal Bulletin 1993 - 94 402. There is another reason why a declaratory order sought cannot be granted and it is that, as earlier stated, there are pending before this Court notices of withdrawal of the petitions in question. An order that these petitions have lapsed would therefore merely be hypothetical, academic and would serve no practical purposes in the circumstances of this case. Before closing this judgment it is necessary to comment on another startling submission by A dv Mosito w ho has charged in his Heads of Argument, bordering on contempt, that this Court has already given a consequential order "prematurely" in favour of "Sekamane" in earlier proceedings. As will become clear in a short while there can be no doubt that II the use of the name "Sekamane" without any forenames was deliberate and is plain misleading. This is so because the Sekamane w ho was granted a consequential order in Moeketsi Tsatsanyane's petition is the one bearing the forename of Tjaoane Sekamane while the Sekamane w ho is opposed to Michael P. Moketa in the instant case bears the forename of Litšitso. More importantly there was no evidence before the Court that Tjaoane Sekamane and Litšitso Sekamene are one and the same person. H ow the Court was expected to surmise this must ever remain a mystery. Nor can Adv Mosito's contention be accepted that this Court is functus officio in so far as the petition of Michael P. Moketa is concerned. This contention loses sight of the fact that the consequential order granted in favour of Tjaoane Sekamane was made in different proceedings between different parties from the instant matter. It cannot therefore be seriously argued that this Court would not grant the present applicant Michael P. Moketa due hearing in due course. To suggest otherwise is an insult upon the integrity of this Court. The following example should serve to highlight the point. Suppose A and B contest chieftainship rights. The Court declares B to be the lawful chief C w ho was not a party to the proceedings subsequently comes up, sues B and satisfies the Court that he is the one w ho should be declared as the lawful chief and not B. In those circumstances the Court would be perfectly entitled to hear the matter and there would be no question of the Court closing its mind simply because it had originally granted relief to B. Regrettably it has to be recorded that this case was slackly presented. As shown above names of litigants were brandished about as if it was nobody's business. In the instant matter for example the Notice of Motion shows that the 3rd Applicant Lekhooana Jonathan is opposed to Motlohi Moeno. Yet in his election petition Lekhooana Jonathan is opposed to Motšoane 'Nyelimane. It may well be that the intention was to cause as m u ch confusion as possible in order to create all sort of imaginary technicalities for review as was hinted already in this matter. Whatever the case might be, this Court warns that slovenly case presentation such as in the instant matter will no longer be tolerated. In all the circumstances of the case therefore the application is dismissed with costs. (agree I agree M. M. RAMODIBEDI JUDGE OF THE HIGH COURT M. M. LEHOHLA JUDGE OF THE HIGH COURT G. N. MOFOLO JUDGE OF THE HIGH COURT Delivered at Maseru this 21st day of September, 1998 For Applicants : Adv. Mosito For Respondents : Mr. Matsau