HIGH COURT OF LESOTHO
MPHOLE MPHOLE Defendant
Plaintiff : Mr. K. Mohau
Defendant : Mr. J Grundligh
by the Honourable Mr. Justice T. Monapathi on the 18th day of October
correct that in Matsehla Khalapa v Compol 1999-2000 LLR 35 the Court
of Appeal had to consider whether "allowing condonation would
leave defendants with a plea or deprive them of the special plea."
Secondly whether the Court a quo had power to grant condonation
sought after expiry of the prescribed period. And thirdly whether the
reasons put forward for delay were good or not.
found on all the legs that the Court a quo should have allowed
condonation. It was because the Court endorsed the general principle
that clause which have the effect of denying an aggrieved person's
right to seek assistance from the Courts of law should be strictly
considered. Secondly, that the explanation given for what was a
considerable delay was that the appellant was an ordinary Mosotho
woman who was ignorant of the requirements of the Police Act 1971 was
a good reason. That in having disregarded the explanation in the
context of "the proper approach to be adopted to the
interpretation of the provisions" the Judge did not exercise his
discretion judicially. As will be clear presently this dispute about
the Defendant's special plea which is not about denying Plaintiff a
right "to seek assistance of a court of law" can be
resolved that the special plea be argued together with the
application for condonation the latter which was received on the
morning of argument. In the present application the Court is being
asked to exercise its discretion by:
plaintiff's failure to apply for leave to bring the matter before
the High Court.
plaintiff leave to have the matter in CIV/T/194/99 heard before the
the matter in CIV/T/194/99 be removed to the
that costs for this application be costs in the cause.
plaintiff further and or alternative relief.
against the background that the summons was filed as long ago as the
6th May 1999 and when a special plea was filed on the 23rd September
1999. The plea reads:
"Section 6 of the High Court Act No.5 of 1978 provides that: No
civil case or action within the jurisdiction of a Subordinate Court
(which expression includes a local or central court) shall be
instituted in or removed into the High Court, save
judge of the High Court acting on his own motion or
leave of a judge upon application made by him in Chambers and after
notice to the other party"
of the provisions of the Subordinate Courts (amendment) Act No.6 of
1998 which came into operation on the 12th May 1998 the jurisdiction
for the magistrate's Court was set at M25,000.00.
plaintiff's claim against the Defendant is for payment of M17,530.00.
Plaintiff instituted action against the Defendant on the 11th May
1999, summons having been insued on the 6th May 1999 and accordingly
Defendant plead that plaintiff's claim is in terms of section 6 of
the High Court Act as referred to herein above unenforceable against
it and of no force and effect as plaintiff did not comply with
section 6(b) referred to above."
as well observe that the application made by the Plaintiff is a clear
concession that the action was filed in this Court irregularly hence
the application for condonation because as Plaintiff said:
I aver that it has come to my notice during the preparation for the
main trial herein that the Defendant had taken a point that the
action in CIV/T/194/99 was instituted without first seeking leave of
Court and yet it is a matter with the jurisdiction of the Subordinate
point out further distinguishing marks of this case from Matsehla
Khalapa's case (supra) I need to record the reasons put up by the
Plaintiff for seeking condonation.
reason put forward by Mr. Mohau from the bar was by pointing out what
he thought should be taken judicial notice of. It was that gazettes
were difficult to acquire from the Government Printer. He cited the
experience of this Court itself.
Grundligh instantly replied that the Lesotho Government Gazette
Extraordinary No. 29 of 12th May 1998 (raising the jurisdiction of
the magistrates Court to M25,000.00) became law on the day it was
published and that it could not be a valid excuse that Mr. Mohau and
his legal colleagues could not have come by the gazette before
instituting the proceedings.
that the excuse was unacceptable on any score and it would open
floods for spurious defences. That anybody came across the problem
Mr. Mohau pointed out was an indication of inefficiency. I did not
exclude my own Court.
who deposed to the affidavit supporting the application for
condonation said he believed that the institution of the action
before the High Court was not done in flagrant disregard of the
provision of the High Court Act. I thought the requirement did not
require one not to be flagrant in his disregard of the Act. Having
conceded that Plaintiff acted irregularly I d . id not understand
what the condonation would amount to.
believed that his late colleague Mr. GG Nthethe, when instituting the
action, he was unaware of the recently promulgated enhancement of the
jurisdiction. I have already commented on how unfavourably I would
view that kind of explanation. Legal practitioners and the Courts
included have only themselves to blame if they are not availed of
legal publications like Government Gazettes in time.
deponent contended that in the circumstances of the case the matter
would rather be referred to the magistrate court rather than be
I looked with awe at the long lists of cases which Mr. Grundligh
cited for the proposition that a case filed irregularly in a Court
that has no jurisdiction ought to be dismissed. The long line of
cases included Thabo Charles Maitin v Mary Barigye 1992-1994 LLR,
270, ABSA Bank Ltd v Naledi Khuele CIV/APN/500/93, Monapathi J 6th
June 1994, Attorney General v Jeanet Malieketseng Makara Kheola CJ
6th January 1995, Setha Lehloenya v Tumo Lehloenya, CIV/T/113/93,
Guni J 19th June 1995.
spoke further about the dictates of convenience and service of the
ends of justice if the matter was sent to the magistrate. While I
would acknowledge that delay is an element to consider in this case
the Plaintiff is to blame when regard is had to the fact that it was
only after three years after the filing of the special plea that the
Plaintiff seeks for condonation. I considered that in the
circumstances I could not have been acting judicially if I disregard
this undue delay on the part of the Plaintiff by turning it in his
favour. He created the inconducive condition. If I favoured the
Plaintiff with the indulgence it would be a wrong exercise of
that in Matsehla Khalapa's case the Court considered that the delay
was not overly and the reasons were good and sufficient inasmuch as
the facts were not traversed in the opposing affidavit. In the
circumstances of this
would say it amounts to prejudice enough if having pleaded so long
ago Plaintiff seeks for condonation at this late hour.
application is dismissed and the plea therefore succeeds with costs.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law