Basutoland (BCP) VTransformation Resource Centre and 45 others (C of A (CIV) No 22/2024) [2024] LSCA 20 (1 November 2024)

# Basutoland (BCP) VTransformation Resource Centre and 45 others (C of A (CIV) No 22/2024) [2024] LSCA 20 (1 November 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2024/20/eng@2024-11-01) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2024/20/eng@2024-11-01) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2024/20/eng@2024-11-01) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2024/20/eng@2024-11-01) [ __](mailto:?subject=Take a look at this document from LesLII: Basutoland \(BCP\) VTransformation Resource Centre and 45 …&body=https://lesotholii.org/akn/ls/judgment/lsca/2024/20/eng@2024-11-01) [ Download PDF (198.5 KB) ](/akn/ls/judgment/lsca/2024/20/eng@2024-11-01/source) Report a problem __ * Share * [ Download PDF (198.5 KB) ](/akn/ls/judgment/lsca/2024/20/eng@2024-11-01/source) * * * * * Report a problem __ ##### Basutoland (BCP) VTransformation Resource Centre and 45 others (C of A (CIV) No 22/2024) [2024] LSCA 20 (1 November 2024) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Basutoland (BCP) VTransformation Resource Centre and 45 others (C of A (CIV) No 22/2024) [2024] LSCA 20 (1 November 2024) Copy Media Neutral Citation [2024] LSCA 20 Copy Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No 22/2024 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA), [Chinhengo AJA](/judgments/all/?judges=Chinhengo%20AJA), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 1 November 2024 Language English Summary Read full summary * * * Skip to document content **** **LESOTHO** **IN THE COURT OF APPEAL OF LESOTHO** **HELD AT MASERU** **C OF A (CIV) NO 22/2024** **CIV/APN/289/2021** In the matter between **BASUTOLAND CONGRESS PARTY (BCP) APPELLANT** AND **TRANSFORMATION RESOURCE CENTRE 1 ST RESPONDENT** **DEMOCRATIC PARTY OF LESOTHO 2 ND RESPONDENT** **INDEPENDENCE ELECTORAL COMMISSION 3 RD RESPONDENT** **ALL BASOTHO CONCENTION (ABC) 4 TH RESPONDENT** **AREKA EA BAENA (BAENA_ 5 TH RESPONDENT** **ALL DEMOCRATIC COOPERATION (ADC) 6 TH RESPONDENT ** **AFRICAN UNITY MOVEMENT (AUM) 7 TH RESPONDENT** **BASUTOLAND AFRICAN NATIONAL** **CONGRESS (BANC) 8 TH RESPONDENT** **BASOTHO BATHO DEMOCRARITY PARTY (BBDP) 9 TH RESPONDENT** **BASOTHO DEMOCRATIC NATIONAL PARTY ((BDNP) 10 TH RESPONDENT** **BASOTHO NATIONAL PARTY (BNP) 11 TH RESPONDENT** **COMMUNITY FREEDOM MOVEMENT 12 TH RESPONDENT** **DEMOCRATIC CONGRESS (DC) 13 TH RESPONDENT** **HAMORE DEMOCRATIC PARTY (HDP) 14 TH RESPONDENT** **LESOTHO CONGRESS FOR DEMOCRACY(LCD) 15 TH RESPONDENT** **LEKHOTLA LA MEKHOA LA MEETLO (LMM) 16 TH RESPONDENT** **LESOTHO PEOPLE’S CONGRESS PARTY (LPC) 17 TH RESPONDENT** **LESOTHO WORKERS PARTY (LWP) 18 TH RESPONDENT** **MAREMATLOU FREEDOM PARTY (MFP) 19 TH RESPONDENT** **MPULULE POLITICAL SUMMIT (MPS) 20 TH RESPONDENT ** **NATIONAL INDEPENDENT PARTY (NIP) 21 ST RESPONDENT** **POPULAR FRONT FOR DEMOCRACY (PFD) 22 ND RESPONDENT** **PROGRESSIVE DEMOCRATS (PD) 23 RD RESPONDENT** **REFORMED CONGRESS OF LESOTHO (RCL) 24 TH RESPONDENT** **SANKATANA SOCIAL DEMOCRACY (SSD) 25 TH RESPONDENT** **SOCIALISTS REVOLUTIONARY PARTY (SR) 26 TH RESPONDENT** **THE WHITE HORSE PARTY (WHP) 27 TH RESPONDENT** **TSEBE SOCIAL DEMOCRATS (TSD) 28 TH RESPONDENT** **ALLIANCE OF DEMOCRATS (AD) 29 TH RESPONDENT** **BASOTHO THABENG EA SENAI (BTS) 30 TH RESPONDENT** **MOVEMENT FOR ECONOMIC CHANGE (MEC) 31 ST RESPONDENT** **TRUE RECONCILLIATION UNITY (TRU) 32 ND RESPONDENT** **MAJALEFA DEVELOPMENT MOVEMENT (MDM) 33 RD RESPONDENT** **BASOTHO REDEVELOPMENT PARTY (BRP) 34 TH RESPONDENT** **AFRICAN ARK (AA) 35 TH RESPONDENT** **BASUTOLAND TOTAL LIBERATION CONGRESS 36 TH RESPONDENT** **MPHATLALATSANE (HOPE) 37 TH RESPONDENT** **UNITED FOR CHANGE (UFC) 38 TH RESPONDENT** **BASOTHO COVENANT MOVEMENT (BCM) 39 TH RESPONDENT** **BASOTHO ACTION PARTY (BAP) 40 TH RESPONDENT** **BASOTHO PATRIOTIC PARTY (BPP) 41 ST RESPONDENT** **BASOTHO LIBERASTION MOVEMENT (BLM) 42 ND RESPONDENT** **REGISTER GENERAL OF SOCIETIES 43 RD RESPONDENT** **ATTORNEY GENERAL 44 TH RESPONDENT** **MINISTER OF JUSTICE, LAW AND** **CONSTITUTIONAL AFFAIRS 45 TH RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS 46 TH RESPONDENT ** **CORAM:** MOSITO, P DAMASEB, AJA MUSONDA, AJA CHINHENGO, AJA VAN DER WESTHUIZEN, AJA **HEARD:** 17 October 2024 **DELIVERED:** 1 November 2024 **_SUMMARY_** _In an application for a mandamus to compel the Independent Electoral Commission and the Registrar-General of Societies the High Court has jurisdiction and the Transformation Resources Centre has standing._ **JUDGMENT** **J VAN DER WESTHUIZEN, AJA:** **Introduction** [1] This is an appeal against a judgment by Sakoane CJ, for a unanimous full bench of three judges of the High Court. The appellant is a political party, the Basutholand Congress Party (BCP), the eighth respondent in the application before the High Court. [2] The first respondent before this Court is the Transformation Resource Centre (TRC). It was the first applicant in the High Court (together with the Democratic Party of Lesotho, as the second applicant). [3] The first respondent in the application before the High Court was the Independent Electoral Commission (IEC), to whom the first part of the eventual order of the Court was eventually addressed. The IEC is not an appellant before this Court buthas been cited as the third respondent. [4] The Registrar-General of Societies (Registrar), Attorney General, Minister of Justice, Law and Constitutional Affairs and Director of Public Prosecutions were the 42nd to 45th respondents before the High Court. The second part of the order was addressed to the Registrar-General, who did not appeal. The other respondents before the High Court were political parties. The same applies to the appeal before this Court. **_In limine_** [5] The appellant applied for _condonation_ of the late filing of its heads of argument. The unopposed application was granted.****(Counsel for all parties may benefit though**** from**** taking note of paragraphs [2] to [7] and [32} to [34] of this Court’s recent judgment in _Theboho Construction v LCT Deliveries_ (C OF A (CIV) /25/2924; CCT/05462/2022).) [6] Counsel for the respondent submitted that the appeal was _moot_ , since the High Court order had been fully implemented. Questions about proof of this state of affairs were posed from the Bench. Counsel for the appellant stated that his client had not received any notice in terms of the order. The matter cannot be regarded as moot. **High Court** [7] The application before the High Court was for a _mandamus_ to compel the IEC and Registrar to perform their statutory duties. They had allegedly been neglecting to enforce compliance with the law by political parties. The order sought, was that the IEC and Registrar had to take action against parties who were failing to meet their obligations under the applicable legislation. [8] The first round of the proceedings involved applications for dispatch of records of the IEC and Registrar, which succeeded. Then a lengthy set of detailed prayers were presented to the High Court. In view of the perimeters of this appeal – explained below in [16} and [17] – it is not necessary to deal with these in detail. [9] The High Court meticulously dealt with the relevant legislation, namely the National Assembly Electoral Act (Electoral Act) 14 of 2011; and the Society Rules of 1967, under the Societies Act of 1966. Again, a detailed analysis of the statutory law at stake is not called for in this appeal. [10] Under section 25 of the Electoral Act parties have to apply for registration. Applications for registration must be accompanied by a range of documents. Section 27 provides for the cancellation of the registration of a party; and section 29 for the inspection of documents. The duty to police compliance with these provisions is on the IEC. Section 66A(1)(g) of the Constitution states the function of the IEC to include the registration of political parties. [11] Rules 5, 9 and 11 of the Society Rules deal with the Registrar’s duties, with regard to maintenance and control of a Societies Register, the rendering of returns and the investigation of the affairs of a society. [12] An account of events regarding compliance with the above was presented to the High Court. The judgment records an exchange of letters and a meeting between the director of the TRC and the IEC about “issues around the political parties’ ‘perpetual non-compliance with the requirements of registration and jncessant financial unaccountability (sic)’ “. [13] According to the High Court, the IEC’s defence included that _“persuading political parties to comply is more beneficial than enforcement by cancellation of registration of registration”_ and that _“the IEC has a discretion in matters of deregistration of non-compliant political parties”._ [14] After analysing the parties’ positions, referring to jurisprudence of the South African Constitutional Court and requirements for a mandamus, the High Court concluded _: “The IEC and the Registrar-General must keep their eyes and ears permanently open to see and hear complaints about political parties that vow to be voted into Parliament but do not comply with laws by that very Parliament. Properly kept and regularly updated registers are indispensable tools in closing the gates to non-compliant political parties.”_ [15] The judgment emphasises the duty of the IEC and Registrar to put in motion the machinery of continuous assessment of compliance by parties. _“Political parties are_ _not above the law …”,_ Sakoane CJ states convincingly. The High Court issued an order directing the IEC and Registrar to take specified steps. **Grounds of Appeal** [16] In its Grounds of Appeal the appellant submits that the High Court erred and misdirected itself – 1. by holding that it had jurisdiction over the matter, while such jurisdiction vested in the IEC; and – 2. in not finding that the applicants did not have _locus standi_ to seek the relief they sought. **This Court** [17] During the hearing of oral argument in this Court, counsel for both parties expressly agreed that the only issues to be debated and decided were those stated in the Grounds of Appeal. This judgment is thus limited to the questions whether the High Court had jurisdiction; and whether the respondent parties had standing __ before the High Court. **Jurisdiction** [18] Counsel raised an argument, with which few would disagree _: ”A court of law cannot_ _entertain the merits of a case without first dealing with its jurisdiction .”_ According to him, this Court’s judgment in _Ramoepana v DPP_ (C of A (CIV) 33/2018) _“settled this_ _matter”._ [19] So far, so good. [20] Then, counsel grounds his submission that the High Court had no jurisdiction and _“could not make any of the orders it pronounced”_ on sections 27 and 28 of the Electoral Act. Section 27 provides that the IEC _“may cancel”_ the registration of a political party. In terms of section 28 a political party that is aggrieved by a decision of the IEC may _“appeal to the High Court against the decision”._ [21] According to counsel for the appellant, the sections referred to spell out that the power to ensure compliance with the Electoral Act vests exclusively in the IEC and no other body. Thus, the legislature, in the Electoral Act, ousted the jurisdiction of the High Court in matters regarding compliance with very important statutory requirements relating to political parties! This cannot conceivably be the case in a constitutional democracy under the rule of law. In terms of the Constitution and all relevant authority and comparative jurisprudence, courts are tasked with hearing matters regarding compliance with the law. The IEC cannot be isolated from and indeed above judicial scrutiny. As indicated above, Sakoane CJ states in the High Court judgment that political parties are not above the law. Neither is the IEC. [22] Section 28 clearly deals with appeals against decisions of the IEC not to register or cancel the registration of a party. Quite the opposite is at stake here: The IEC is not taken to task for acting against any party. The complaint is that it does _not_ do what it is legally tasked to do! The order sought and issued is that the IEC must do its work! There is no doubt that a court of law may be approached to declare a state institution to be in breach of its constitutional or legal obligations; and to order it to act according to the law. If a constitution or statute says that the president must call for an election, it surely cannot mean that if she or he refrains from doing so, courts have no jurisdiction to test the president’s conduct! [23] After questions from the bench, counsel for the appellant wisely conceded on the issue of jurisdiction. There is no doubt that the High Court had jurisdiction. **Standing** [24] The submission that the TRC lacked standing to approach the High Court is related to the one about jurisdiction – and equally devoid of merit. Yet, the appellant’s counsel did not abandon it. [25] The appellant argues that there is no proof that the applicants before the High Court have been affected by the exercise of statutory powers by the IEC in registering political parties. Relying on case law, such as _Lesotho_ _Human Rights Alert Group v Minister of Justice and Human Rights and_ _Others_ (LAC 1990 – 1994) and other decisions, counsel for the appellant argued that only a party with a direct interest can sue. During oral argument he repeatedly stressed that natural persons or parties should have sued in this case. The cases referred to by the appellant dwelled on the Roman Dutch _actio popularis_ , which was allegedly abandoned centuries ago. [25] Counsel for the respondent referred to several recent decisions to illustrate a more inclusive approach to standing in matters of public interest, even though a direct and sufficient interest is still required. Counsel also quoted from the recent case of _Democratic Congress and Others v Puseletso and_ _Others_ (C OF A (CIV) NO 13/2024; [[2024] LSCA 1](/akn/ls/judgment/lsca/2024/1)(14 June 2024)): _“As a citizen and registered voter he has a direct and personal interest in upholding and enforcing his fundamental rights and_ _freedoms enshrined in the Constitution.”_ The Court also mentioned “ _the proper_ _functioning of the democratic process under section 20 of the Constitution_ ”. [26] The director of the TRC describes the organisation as _“a juristic body registered as such … its respective members are citizens of Lesotho …its primary objects are to promote, preserve and protect human rights standards in the Kingdom … The organisation is thereby falling within a class of organised groups of concerned citizens who have the object that promotes democracy and peace as a matter of principle. Above all, it aims to promote constitutional values and ethos of human rights, peace and good governance as underpinned under Section 20 of the Constitution of Lesotho …”_ [27] Section 20 of the Constitution protects the right to participate in government. This does not only apply to politicians. Fair and free elections lie at the core of democratic government. It is of the utmost importance that political parties that participate in elections must comply with the law, in order to compete fairly for election. The entire public has an interest in properly regulated elections. So does every individual, as well as any properly registered organisation that represents members of the public. Organisations like the TRC are the eyes, ears and life blood of democracy. [28] The TRC had locus standi in the High Court. For similar reasons the appellant has standing in** __** this Court, even though this was questioned by counsel for the** __** respondent. **Conclusion** [29] The appeal must fail. Costs are to follow the result. This is not a dispute with the government about rights, but litigation amongst political parties and an organisation promoting democracy. The IEC and Registrar did not participate in these appeal proceedings. **Order** [30] In view of the above – the appeal is dismissed with costs. **____________________________________** **J VAN DER WESTHUIZEN** **ACTING JUSTICE OF APPEAL** I agree: __________________________________ **K E MOSITO** **PRESIDENT OF THE COURT OF APPEAL** I agree: **_______________________________** **PT DAMASEB** **ACTING JUSTICE OF APPEAL** I agree: **_________________________________** **P MUSONDA** **ACTING JUSTICE OF APPEAL** I agree: **________________________________** **M CHINHENGO** **ACTING JUSTICE OF APPEAL** **For the appellant:** Adv L.A. Molati **For the respondents:** Adv C.J. Lephuthing with mr m. rasekoaI**** #### __Related documents ▲ To the top >