Sekautu v Minister of Law & Constitutional Affairs and Others (CIV/APN 448 of 99) [2000] LSCA 22 (28 February 2000)

CIV/APN/448/99 IN T HE H I GH C O U RT OF L E S O T HO In the Application of: M A K A RA A Z A EL S E K A U TU 1st U N I T ED P A R TY 2nd Applicant Applicant T HE M I N I S T ER OF L AW & C O N S T I T U T I O N AL A F F A I RS T HE I N T E R IM P O L I T I C AL A U T H O R I TY T HE A T T O R N E Y - G E N E R AL 3rd 1st 2nd Respondent Respondent Respondent J U D G M E NT Delivered by the Honourable Mr Justice M . L. Lehohla on the 28th day of February. 2000 T he t wo applicants approached this Court by w ay of a notice of M o t i on seeking an order against the three respondents in the following terms. (a) Directing the respondents in their different capacities to facilitate the gazettement, recognition a nd acceptance of 2nd applicant as a m e m b er of the 2nd respondent. (b) Directing the Respondents to remunerate such m e m b e rs of the 2nd applicant accordingly as shall be presented to 2nd r e s p o n d e nt w i th effect f r om the 8th D e c e m b er 1 9 98 until 2nd r e s p o n d e nt is lawfully dissolved. (c) Directing the respondents to p ay the costs of this application o n ly in the event of o p p o s i ng s a m e. (d) G r a n t i ng b o th applicants s u ch further and/or alternative relief as this H o n o u r a b le C o u rt d e e ms fit a nd just. The applicants rely on the facts set out in the founding affidavit of the 1st applicant who is also the president of the 2nd applicant. T he applicants' a v e r m e n ts enjoy the support of M a m e l lo M o r r i s o n 's supporting affidavit. T he r e s p o n d e n ts h a ve n ot reacted to the applicants' a v e r m e n ts by w ay of affidavits. Suffice it to say they s o u g ht to rely only on points of l aw raised in limine. C o n s e q u e n t ly despite the interesting history elaborated on by the 1st applicant in his f o u n d i ng affidavit the issues to be d e c i d ed in this application w o u ld tend to fall within a v e ry n a r r ow c o m p a s s. In points (b) a nd (c) raised in limine the r e s p o n d e n ts c o n t e n d ed that: (i) The first applicant has no locus standi to institute these proceedings in his name on behalf of the 2nd applicant seeking prayers as appear in the notice of motion (ii) The deponent to the founding affidavit has no authority to file papers on behalf of the 2nd applicant in this matter as there is no resolution passed by 2nd applicant giving him authority to act on its behalf. While these contentions in a proper case could carry the day, in the instant matter they stand to be thrown out on the following grounds - (1) that there is ample evidence in the founding affidavit to provide the Court with sufficient confidence that the 1st applicant is indeed acting in representative capacity vis-a-vis the 2nd applicant of which he is the president; (2) if there was any contention that the 1st applicant has no authority to represent the 2nd applicant then it would have been appreciated if such contention was set out in opposing papers. As things stand I am under no illusion that it is the 2nd applicant which is litigating and not some unauthorised person on its behalf. See Mall(Cape) Pty Ltd vs Merino Kooperasie Bpk 1957(2) SA 347; (3) though this 3rd ground does not serve as grounding any basis for dismissing the respondents' contentions raised above it is worth mentioning that though they have been multiplied into two they are essentially two sides of the same coin namely that the 1st applicant has no authority to represent the 2nd applicant because there is no resolution to show for it. It would thus be fruitful to have regard to the dictum of Mahomed J. A. as he then was in: The Central Bank of Lesotho vs E. H. Phoofolo C. of A. (CIV) No.6/87 (unreported) at page 15 where the learned Judge said : " There is no invariable rule which requires a juristic person to file a formal resolution, manifesting the authority of a particular person to represent it in any legal proceedings, if the existence of such authority appears from other facts ". I agree with the learned Appeal Court Judge's statement of the law set out in the above phrase. The last two points raised in limine being thus decided in favour of the applicants I should make haste to deal with point (a) which forms the core of the objection and in some sense the barrier that the applicants wish this Court to break in order to enable them realise their objectives. In point (a) the respondents contend that :- "In terms of the Interim Political authority Act No. 16 of 1998 (The Act) only representatives of the political parties mentioned under section 5 of the said Act shall compose the authority. The 2nd applicant is not one of the political parties mentioned and as such has no right in law to be a member of the authority". The political parties listed as composing the Authority in the Interim Political Authority A ct 1 9 98 do n ot include the 2nd Applicant. Mr F o ra for the applicants raised the point that the A ct is discriminatory of his clients a nd therefore d o es not accord w i th Section 18 of the Constitution. Section 18(1) says : "Subject to the provisions of subsections 4 a nd 5 no l aw shall m a ke a ny provision that is discriminatory either of itself or in its effect". T he a r g u m e nt raised in this regard w o u ld in my v i ew h a ve relevance if it c o u ld be s h o wn that a l t h o u gh the 2nd applicant a p p e a rs in the list c o m p o s i ng the Authority it h as nevertheless b e en e x c l u d ed by s o me other l aw f r om participating or e n j o y i ng benefits that e a ch party w h i ch is similarly listed is entitled to participate in a nd enjoy. In the instant matter it s e e ms to me that the applicants a nd n o b o dy else stood in the w ay of their o wn interests by failing to take s u ch steps that e v e ry o ne else t o ok to ensure their inclusion in the process that led to the passing of the 1 9 98 A c t. It is c o m m on k n o w l e d ge that the l aw c o u ld scarcely be of assistance to those w ho sleep on their rights. Just by w ay of a r a n d om e x a m p le I m ay correctly c o n t e nd that I h a ve a Constitutional right to obtain University education. B ut I c a n n ot enforce that right through courts of law if I didn't apply for admission to study at University. Thus I shouldn't be heard to complain that those with w h om I passed Pre-University entrance examination were admitted when I made no effort to meet the requirement that in order to be admitted I should go a step further and apply - a condition which my compatriots have satisfied while I haven't. It surely would not amount to a breach of my Constitutional right to education at University if I am denied entrance to pursue my studies at such Institution in those circumstances. Furthermore the function of this Court is to interpret the law and ensure that its judgments are enforced. It is not its function to legislate. I cannot see the applicants' grievances redressed on papers as they stand without the Court in effect amending the law that only Parliament is entitled to amend. In The Manager-Tebellong L E C Schools and L E C Educational Secretary vs Godfrey Lekhanya C. of A (CIV) 1 of 1977 Milne Acting President sitting with Smit J A and Isaacs A J A in a more or less similar situation to the instant matter granted leave to withdraw the appeal with costs when it became apparent that contentions by the appellants were on moral and not in the least on legal grounds. In order for the appellants to succeed there would have been the necessity to have the law in point a m e n d ed and the Court of A p p e al w as not the rightful authority to m a ke a m e n d m e n ts on that law. A n o t h er u n w h o l e s o me feature that w o u ld possibly result w e re the court to uphold the applicants' claim w o u ld be that no matter h ow m a ny m o re political parties w o u ld m u s h r o om after the 1 9 98 A ct w as passed a nd confined the composition of the Authority to a distinct n u m b er each such party w o u ld thereby be entitled to d r aw on the public purse regardless of budgetary constraints w h i ch should go h a nd in h a nd with sane a nd g o od governance. S u ch is the state of affairs that logic a nd proper thinking dictate should not be encouraged. It is my considered v i ew therefore that g o od sense and indeed the position of the law as it stands do not countenance w h at is prayed for by the applicants. It could not augur well for this K i n g d om if advantage being sought to be taken of political expediency w e re allowed to serve as an invitation to m a ke indiscriminate and limitless inroads on the public purse. I w o u ld therefore dismiss the application. B ut because of the substantial success the applicants h ad in the disposal of part of the points raised in limine costs payable by t h em w o u ld be reduced by 2 5% of the respondents' costs. Accordingly the application is dismissed with 7 5% costs only. J U D GE 28th February, 2 0 00 For Applicants : Mr Fosa For Respondents : Mr Putsoane