Tefo Tefo
THE Court of Appeal on Friday ordered the Basotho National Party (BNP) to pay the legal costs of its Secretary General (SG) Lesojane Leuta.
This was after the BNP withdrew its challenge of an 18 February 2015 High Court judgment dismissing the party’s application for the cancelation of a Proportional Representation (PR) list submitted to the Independent Electoral Commission (IEC) by Mr Leuta. The list had been submitted on 4 February 2015 ahead of the 28 February general elections.
In her affidavit, the party’s chairperson Nthabiseng Makoae alleged Mr Leuta had unilaterally replaced the PR list submitted to the IEC by the party’s National Executive Committee (NEC).
However, High Court judge, Justice Tšeliso Monaphathi, dismissed the application on the grounds Dr Makoae did not have the powers to write an affidavit on behalf of the party.
“I can instantly observe that this application shows the extent of the confusion which the BNP has been dealing with, but I don’t see why there was this confusion in the filing of the party list to the IEC. It’s a mystery!” he said.
Justice Monaphathi further noted the IEC had the right to reject the third list the BNP submitted on 9 February 2015 to substitute Mr Leuta’s submission of 4 February.
“Most importantly, it looks like the commission has the authority to do what it did,” he noted.
“I don’t undermine the dissatisfaction by the BNP about the list, but clearly there was confusion that the BNP wanted clarified.”
Justice Monaphathi said he would not decide the case on its merits but only on the points of law raised by the respondents.
The BNP, he noted, had failed to cite as respondents, four people the party wanted removed from the PR list, namely Aaron Liphoto, ‘Manchela Nchela, Mohalenyane Masasa and ‘Malineo Mothabeng.
“It is not denied that the list will adversely affect four people whose names appear on the second list (the final list that appears in the IEC gazette),” said Justice Monaphathi.
“They are interested and necessary parties to these proceedings. It has been submitted that failure to cite them renders them non-suited. This is one of the grounds upon which I dismiss this application.”
He also said there should have been resolutions from the NEC meeting proving Dr Makoae had been mandated to make the affidavit on behalf of the party.
The judge noted failure to provide the court with such resolutions had made him decide in favour of Mr Leuta, who had alleged in court papers that Dr Makoae did not have the party’s mandate to institute such legal proceedings. Mr Leuta had also argued he was authorised by party leader Thesele ‘Maseribane to substitute the list. However, Chief ‘Maseribane denied this claim in his papers also filed before the court.
“There must be proof that one has been authorised to sue on behalf of the BNP by way of a resolution,” the judge noted.
“Here, there is no such authority except that counsel (Advocate Moeketsi Lekobane) referred to the constitution (of the BNP) where the powers of executive committee members are stipulated.
“I refuse to agree that Ms Makoae is empowered to litigate on behalf of the party.”
Justice Monaphathi also criticised the party for failing to lodge its objection with the IEC before taking the case to the High Court.
“I don’t find any justification for this application which was misconceived and made out of desperation.
“It’s amazing that there was this kind of confusion. I dismiss this application with costs to the respondents,” he said.
Meanwhile, Court of Appeal judge, Justice Moses Hungwe Chinhengo on Friday, ruled: “Because the matter was withdrawn, the appellants should pay the costs of the suit.”