THE Basotho National Party (BNP) yesterday lost a case in the High Court in which it sought the nullification of the party’s Proportional Representation (PR) list published by the Independent Electoral Commission (IEC) last week.
The party and its National Executive Committee (NEC) filed an urgent application before the court on Wednesday last week seeking the cancelation of the PR list submitted to the IEC by the Secretary General, Lesojane Leuta on 4 February.
In the court papers, the BNP and its NEC cited the IEC, IEC Director of Elections and Mr Leuta as respondents in the case.
In the documents, the Deputy Minister of Health Nthabiseng Makoae, in her capacity as the party’s chairperson, alleged Mr Leuta had submitted the PR list without being authorised to do so by the party.
She noted, in her affidavit, that Mr Leuta submitted the list to replace another that had already been given to the IEC.
However, High Court judge Justice Tšeliso Monaphathi dismissed the application last night on the grounds that Dr Makoae did not have the powers to write an affidavit on behalf of the party.
“I am bound to make a decision on this matter now.
“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!
“What is important is that the IEC, at all times, wanted to comply with the Electoral Act,” he said.
Justice Monaphathi further noted the IEC had the right to reject the third list the BNP submitted on 9 February to substitute Mr Leuta’s submission of 4 February.
“Most importantly, it looks like the commission has the authority to do what it did.
“I don’t undermine the dissatisfaction by the BNP about the list, but clearly there was confusion that the BNP wanted clarified,” he said.
Justice Monaphathi further noted he would not decide the case on its merits but only on the points of law raised by the respondents.
The BNP, he added, had failed to cite, as respondents, four people the party wanted removed from the PR list .
The four were 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).
“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 why I dismiss this application.
“I was astounded that counsel for applicants (Advocate Moeketsi Lekobane) did not appreciate this issue of people being interested and affected by these proceedings,” Justice Monaphathi said.
He also said there should have been resolutions from the NEC meeting proving that 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 alleged in court papers that Dr Makoae did not have the party’s mandate to institute such legal proceedings.
“There must be proof that one has been authorised to sue on behalf of the BNP by way of a resolution.
“Here there is no such authority except that counsel referred to the constitution (of the BNP) where powers of executive committee members are stipulated.
“I refuse to agree that Ms Makoae is empowered to litigate on behalf of the party,” he ruled.
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 ruled.
Meanwhile, in the court papers, Mr Leuta had argued that he was authorised by party leader Thesele ‘Maseribane to substitute the list.
However, Chief ‘Maseribane had denied this claim in his papers also filed before the court.