Collections
Page | 1
IN THE HIGH COURT OF LESOTHO
(sitting in its constitutional jurisdiction)
HELD AT MASERU CC No. 0022/2023
In the matter between:
MOSITO RAMAHLOKO t/a TIP TOP APPLICANT
GUEST HOUSE
and
NEDBANK LESOTHO LIMITED 1st RESPONDENT
THE MINISTER OF FINANCE 2nd RESPONDENT
THE MINISTER OF LAW AND 3rd RESPONDENT
CONSTITUTIONAL AFFAIRS
ATTORNEY - GENERAL 4th RESPONDENT
Page | 2
Neutral citation : Mosito Ramahloko t/a Tip Top Guest House v Nedbank Lesotho Limited and 3 Others [2023] LSHC Const 139 (19 August 2024)
CORAM : KHABO J.,
MOKHORO J.,
MAKHETHA J.,
HEARD : 04 DECEMBER 2023
DELIVERED : 19 AUGUST 2024
SUMMARY
Constitutional law - Constitutional validity of the summary judgment procedure under Rule 28 of the High Court Rules, 1980 - Applicant praying that the procedure be declared null and void on the basis that it violates his fundamental rights and freedoms to a full and fair trial and the enjoyment of his right to property entrenched in Sections 12 and 17 the Constitution of Lesotho, 1983;
Judicial cession - The Applicant further seeking that his right to the payment of money owed to him by the Government of Lesotho for services he rendered to it be ceded to the bank to avoid the attachment of his property;
Page | 3
Jurisdiction - 2nd and 4th Respondents’ Counsel challenging the jurisdiction of this court to hear and determine this matter - Court declining jurisdiction in terms of the proviso in Section 22 (2) of the Constitution on the basis that the Applicant has adequate means of redress in Rule 28 (5).
ANNOTATIONS
Statutes and subsidiary legislation
Constitution of Lesotho, 1993
High Court Rules, 1980
Cases cited
Lesotho
Chief Justice and Others v Law Society C of A (CIV) No. 59 of 2011
Lebohang Mei v Mr. Justice Thamsanqa Nomngcongo NO and 4 Others Constitutional Case No. 06 of 2018
Jane Lekunya and 15 Others v Minister of Foreign Affairs and International Relations and 3 Others (Const/3 of 2020) [2021] LSHC 49 (19 October 2021)
Matsoso Nts’ihlele and 127 Others v Independent Electoral Commission and 5 Others C of A (CIV) No. 57/2019
Rethabile Setlojoane v Commissioner of Police and 2 Others C of A (CIV) No. 69/2023
Sekoati and Others v President of the Court - Martial and Others LAC (1995 - 1999) 812
Page | 4
Solé v Cullinan NO and Others LAC (2000 - 2004) 572
Teboho Mojapela v Prime Minister of the Kingdom of Lesotho and 4 Others (Const. case No. 7 of 2018) [2019] LSHC 30 (18 April 2019)
Other jurisdictions
South Africa
S v Makwanyane 1995 (3) SA 391 (CC)
S v Mhlungu and Others 1995 (3) SA 867 (CC)
Books
Herbstein & Van Winsen - The Civil Practice of the Supreme Court of South Africa 4th ed., JUTA & Co. Ltd, 1977
Page | 5
JUDGMENT
KHABO J.,
Introduction
[1] The Applicant is the proprietor of Tip Top Guest House carrying on business at Ha Ramokhele in the Mafeteng Urban Area. His prayers before this court are two - faceted. Firstly, that the summary judgment procedure provided for under Rule 28 of the High Court Rules, 19801 be declared unconstitutional on the basis that it violates his fundamental rights and freedoms to a full and fair trial and the right to property as entrenched in Sections 12 and 17 of the Constitution of Lesotho, 1993 (the Constitution), respectively.
[2] Secondly, that this court grants the novel remedy of judicial cession which he says is envisaged under Section 22 (2) (b) of
1 Legal Notice No. 9 of 1980
Page | 6
the Constitution. He is in essence complaining about the summary judgment procedure and the execution of his property, arguing on the latter that he could have been able to service his loan with the bank were it not for the Government’s failure to pay him for the hospitality services he rendered to it.
[3] It is common cause that there are summary judgment proceedings pending before the Commercial Court (a Division of the High Court) in CCT/0421/2023. An illustration of the facts surrounding this dispute will lend a better perspective to Applicant’s claim.
Background to the dispute
[4] The salient facts surrounding this dispute are that the Applicant applied for a business loan around June, 2020 to the tune of Six Hundred and Seven Thousand, Four Hundred and Forty - Five Maloti (M607 445.00)2 comprising Five Hundred and Eighty - Seven Thousand Maloti (M587 000.00) for an overdraft, plus an administration fee of Twenty
2 Annexure ‘B’
Page | 7
Thousand, Five Hundred and Forty - Five Maloti (M20 545.00) from Nedbank Lesotho Limited.
Applicant’s case
[5] The Applicant avers that the Government is indebted to him to the tune of One Million Sixty - Six Thousand and Fifty Maloti (1 066 050.00) by way of the services he rendered to it plus interest at the rate of 7.5% per annum from the 14th of June 2023 to be paid within three (3) months of issuance of orders sought herein. The Applicant contends that the Government has failed to pay despite several demands. The One Million Sixty - Six Thousand and Fifty Maloti (1 066 050.00) may be broken down as follows:
Date Amount
01st February 2019 to 31st July 2019 M733 860.00
09th July 2021 M322 190.00
Page | 8
[6] Whilst he acknowledges his indebtedness to Nedbank Lesotho Limited, he contends that the said loan was approved on the strength of a guarantee from the Government, which it now fails to fulfil.
Relief sought
[7] The Applicant is now before this court to seek an order in the following terms:
That a Rule Nisi be issued returnable on a date and time to be determined by the above Honourable Court, calling upon the Respondents to show cause, if any, why orders in the following terms shall not be made final:
(a)
Dispensing with the Rules of Court relating to service and time - frames in relation thereto on account of urgency hereof, and/or Honourable Court to issue directions for the matter to be dealt with at such time and in such manner and in accordance with such procedure as to promote the expeditious and cheap hearing of this matter;
Page | 9
(b)
That the proceedings in certain CCT/0421/2023 be stayed pending the finalisation of this application;
(c)
A declarator that Rule 28 of the High Court Rules, 1980 on summary judgment is unconstitutional for violating Applicant’s rights to a fair trial and property entrenched in Sections 12 and 17 of the Constitution of Lesotho, 1993;
(d)
A security cession and/or judicial cession/traditio that Applicant’s debt and personal rights against the Government of Lesotho be transferred to NEDBANK LESOTHO LIMITED;
(e) A positive interdict /mandamus that the Government be directed to pay NEDBANK LESOTHO LIMITED [the] debt of M890 181.73 plus interest at the rate of 7.5% per annum from the 14th June, 2023 up to the date of payment within three (3) months of issuance of orders sought herein;
(f) A structural interdict that the parties should report back to court after the expiry of three (3) months of issuance of orders sought herein on the extent of compliance with orders issued herein;
(g) That the Government be directed to pay the Applicant an amount of M175 869.00;
Page | 10
(h)
That Applicants be granted further and/or appropriate and effective relief;
(i)
That Respondents pay costs of this application in the event of contestation.
ALTERNATIVELY
(j)
That the Government be directed to pay Applicant the amounts of M1 066 050.00 plus interest at the rate of 7.5% per annum from 14th June, 2023;
(k)
That the 1st Respondent be restrained and interdicted from demanding and/or executing Applicant’s property until the Government has paid the Applicant the owed and due amounts of M1 066 050.00 plus interest aforesaid;
(l)
That Applicant be directed to pay NEDBANK LESOTHO LIMITED [the] debt of M89 018 173.00 within a reasonable time of receipt of payment from the Government.
That prayers 2 (a) and (b) operate with immediate effect as interim reliefs.
Page | 11
The dispute
[8] On or about 26th September 2023, the Applicant was served with summons3 in CCT/0421/2023 for the payment of a sum of Eighty Hundred and Ninety Thousand, One Hundred and Eighty - One Maloti and Seventy - Three Cents (M890 181.73). He entered an appearance to defend on 10th October 2023, and in reaction, the Plaintiff filed a notice of application for summary judgment.
Summary judgment as a concept
[9] A summary judgment is a judgment entered by the court summarily, namely, without a full trial. The summary judgment procedure is designed to enable a plaintiff whose claim falls within certain defined categories to obtain judgment without the necessity of going to trial, in spite of the fact that the
3 Annexure ‘F’
Page | 12
defendant has intimated, by delivering notice of intention to defend, that he intends raising a defence.4
[10] In terms of Rule 28, a summary judgment application may only be brought over the following claims:
(a)
On a liquid document
(b)
For a liquidated amount in money
(c) For delivery of a specified movable property, or
(d) For ejectment
together with any claim for interest and cost.
[11] The summary judgment procedure allows for a speedy, and affordable resolution of disputes. For instance, a summary judgment may be obtained in breach of contract proceedings where the breach of contract is clear and there is no genuine dispute of fact. At the centre of the current dispute is a
4 Herbstein & Van Winsen - The Civil Practice of the Supreme Court of South Africa 4th ed., JUTA & Co. Ltd, 1977 at p. 434
Page | 13
liquidated amount of money arising out of Applicant’s failure to honour its repayment terms with the bank.
[12] The party seeking summary judgment must show that there is no genuine dispute of fact and that the legal issues can be decided based on the evidence before court. If the court is satisfied that these requirements have been met, it may grant the summary judgment.
[13] It is Applicant’s case in casu that the Commercial Court is about to issue a summary judgment against him and to order the execution of his property, a conduct he considers a violation of his right to a fair trial and to property under Sections 12 and 17 of the Constitution, respectively. In the context of this case, the former talks to the right to be heard and the latter to freedom and protection from arbitrary seizure of property.
[14] The Applicant contends that the summary judgment procedure (Rule 28) deprives him of his constitutional right to
Page | 14
be heard. It is his case that he has a bona fide defence that the Government, despite having facilitated his loan with the bank and undertaking to pay him for his services within two months of them being rendered, failed to honour its obligations. He further complains about the fairness of the requirement under Rule 28 (3) (a) for payment of security upon defending summary judgment proceedings.
[15] He, therefore, prays that Rule 28 be declared unconstitutional, and that the court orders the novel remedy of judicial cession by virtue of which his rights to payment from the Government will be ceded/transferred to the bank which will become the cessionary. He is further praying that the court directs the bank to recover its debt directly and not pursue him.
[16] Applicant’s Counsel contends that it is only this court that can grant this remedy. He relies for this assertion on Section 22 (2) (b) of the Constitution for this prayer which empowers the court to:
Page | 15
Give such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to 21 (inclusive) of this Constitution.
[17] Counsel cited several authorities including Chief Justice and Others v Law Society5 which had cited with approval Solé v Cullinan NO and Others on the issue6 in impugning Rule 28 and praying for the grant of judicial cession.
In reaction – preliminary point on jurisdiction
[18] In reaction to this application, 2nd to 4th Respondents’ Counsel raised a jurisdictional challenge to the effect that this matter ought not to have been brought before this court sitting in its constitutional capacity on the basis that the issue is already pending before the Commercial Court, and secondly, that a constitutional question does not arise. Essentially, 2nd to 4th
5 C of A (CIV) No. 59 of 2011
6 LAC (2000 - 2004) 572
Page | 16
Respondents’ Counsel argues that this court is not competent to hear and determine this application.
Analysis
[19] The High Court sitting in its constitutional jurisdiction deals exclusively with those cases that raise questions about the application or interpretation of the Constitution. Courts have a duty to uphold the supremacy of the Constitution and to invalidate any law that is inconsistent with it. To this end, Section 2 of the Constitution provides that:
This Constitution is the supreme law of Lesotho and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.
[20] It is against this background that the Applicant seeks to impugn the summary judgment procedure as envisaged in Rule 28 for failure to meet constitutional obligations and for
Page | 17
the court to enforce its powers under Section 22 (2) (b) of the Constitution regarding judicial cession.
[21] The power to enforce constitutional rights is contained in Section 22 of the Constitution. According to the Section, in ascertaining the competence of this court to hear and determine a constitutional issue, the test is two - fold. Firstly, whether a person is complaining of a violation of human rights entrenched in Sections 4 to 21 of the Constitution. Secondly, whether there are adequate means of redress for the alleged violation under any other law7 in which case the court may decline jurisdiction.8
[22] On the latter, Section 22 (2) of the Constitution provides that:
[This] court may decline the exercise of its powers under this subsection if it is satisfied that adequate means of redress for the
7 Lebohang Mei v Mr. Justice Thamsanqa Nomngcongo NO and 4 Others Constitutional case No. 06 of 2018
8 Solé v Cullinan NO and Others supra at p. 594 and Matsoso Nts’ihlele and 127 Others v Independent Electoral Commission and 5 Others C of A (CIV) No. 57/2019 at para 25
Page | 18
contravention alleged are or have been available to the person concerned under any other law.
This proviso in intended to guard against misuse of the constitutional litigation.9
[23] As held in S v Makwanyane10 a “Constitution is no ordinary statute.” In line with this observation, the court in Sekoati and Others v President of the Court - Martial and Others11 stated that the general approach in constitutional matters is that “… a court will not determine a case on a constitutional basis if it is properly capable of being appropriately adjudicated on another basis.
[24] The decision cited with approval S v Mhlungu and Others12 which laid down the general principle that:
9 Lebohamg Mei (supra) at para. 26, p.13
10 1995 (3) SA 391 (CC) at para. 15
11 LAC (1995 - 1999) 812 at 820F
12 1995 (3) SA 867 (CC) at para. 59
Page | 19
… where it is possible to decide any case, civil or criminal without reaching a constitutional issue that is the course that should be followed.
This principle has been enunciated in several judgments of this court including Jane Lekunya and 15 Others v Minister of Foreign Affairs and International Relations and 3 Others.13
[25] The proviso in Section 22 (2) of the Constitution a condition precedent to entertaining a matter impinging on the interpretation, protection, and enforcement of the Constitution. Hence, much as rights to a fair trial and property are guaranteed in Sections 12 and 17 of the Constitution, they may be subject to the above proviso. It is this court’s considered view that the Applicant has adequate means of redress before the Commercial Court. He can raise his defence against the claim before it as envisaged by Rule 28 (3) which provides that:
13 (Const/3 of 2020) [2021] LSHC 49 (19 October 2021)
Page | 20
Upon the hearing of the application for summary judgment, the defendant may -
(a)
Give security to the plaintiff to the satisfaction of the Registrar for any judgment including such costs which may be given; or
(b)
Satisfy the court by affidavit or, with leave of the court, by oral evidence of himself or of any other person who can swear positively to the fact, that he has a bona fide defence to the action.
Such affidavit shall be delivered before noon not less than two court days before the hearing of the application. Such affidavit or oral evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.
[26] The Applicant is not devoid of redress besides the Constitution as he also has solace in Rule 28 (5) above. The Section provides a sufficient safeguard against arbitrary seizure of his property and any denial of his right to be heard. Much as the summary judgment procedure may in terms of Rule 28 be resorted to after the entry of appearance to defend and not
Page | 21
after the filing of a plea, the court feels Subrule (3) affords sufficient protection.
[27] This court has taken the caveat expressed by the apex court in Rethabile Setlojoane v Commissioner of Police and 2 Others14 that the proviso in Section 22 (2) of the Constitution be interpreted narrowly into account. In the circumstances of this case, the court finds it appropriate to decline jurisdiction because of the availability of the mechanism under Subrule (3) for the Applicant to present his defence.
Application for judicial cession
[28] As already mentioned above, the Applicant further asks this court to order the cession of his rights over his accrued monies from the Government directly to the bank, so that the former pays Applicant’s loan to the bank and remit whatever balance
14 C of A (CIV) No. 69/2023
Page | 22
there would be to him. Hence, prayer (g) for the payment of One Hundred and Seventy-Five Thousand, Eight Hundred and Sixty - Nine Maloti (M175 869.00). The court can only get into this question upon satisfying itself that it has jurisdiction over this case brought constitutionally.
Costs
[29] As a general rule, an unsuccessful party against the State is not normally mulcted with costs.15 This is to encourage litigants to access courts to enforce their rights as enshrined in the Constitution. But where litigants institute frivolous and vexatious matters, the court will make a costs order. In this case, the Applicant approached this court to seek a relief in the face of property that is about to be executed whilst having monies that he is owed by the Government. In these circumstances, the court does not feel inclined to order costs.
15 Teboho Mojapela v Prime Minister of the Kingdom of Lesotho and 4 Others (Const. case No. 7 of 2018) [2019] LSHC 30 (18 April 2019) at para. 9
Page | 23
ORDER
[30] In the result the following order is made:
(a)
The court declines jurisdiction to hear and determine the matter;
(b)
The application is, therefore, dismissed; and
(c)
There is no order as to costs.
_________________
F.M. KHABO
JUDGE
_______________________
I agree M.G. MOKHORO
JUDGE
__________________
I agree M. MAKHETHA
JUDGE
Page | 24
For the Applicant : Adv., M. Mohlabula
For the 2nd and 4th Respondents : Adv., P.T.B.N Thakalekoala assisted by Adv., N. Ncheke