HIGH COURT OF LESOTHO
WHOLESALERS' AND CATERING WORKERS UNION 1st Applicant
NKOALE 2nd Applicant
THOALA 3rd Applicant
THEKO 4th Applicant
PEETE MOLAPO 5th Applicant
THETSANE 6th Applicant
MAFATHLE 7th Applicant
MATSELA 8th Applicant
NTLALOE 9th Applicant
MOSIUOA 10th Applicant
MABESA 11th Applicant
MAPETLA 12th Applicant
KHOTLE 13th Applicant
MOKHELE 14th Applicant
RAMOSOTHOANE 15th Applicant
MOLAPO 16th Applicant
MOKHETHI 17th Applicant
MOIKETSI 18th Applicant
RAMOKHELE 19th Applicant
MOTOA 20th Applicant
MOHALE 21st Applicant
HLALELE 22nd Applicant
TSILO 23rd Applicant
LEFUNYANE 24th Applicant
NTHAKO 25th Applicant
LETSOARA 26th Applicant
MAKHOEBE 27th Applicant
KHOELE 28th Applicant
MOTOLO 29th Applicant
FAKO 30th Applicant
PHANTSI 31st Applicant
RAKHAPU 32nd Applicant
KHANA 33rd Applicant
MAKHETHA 34th Applicant
KALELE 35th Applicant
SECHECHE 36th Applicant
LESOTHO LIMITED 1st Respondent
TRADING LIMITED 2nd Respondent
SHERIFF OF THE COURT 3rd Respondent
LIEBETRAU & CO 4th Respondent
Applicants : Mr. Kulundu
Respondents : Mr. Buys
by the Honourable Mr. Justice T. Monapathi on the 7th day of November
in essence seek to set aside a Warrant of Execution dated the 15th
February 2001 issued pursuant to an "allegedly taxed" Bill
of Costs against the Applicant. The allocatur was signed by Mrs
Khiba-Matekane who was then Deputy Registrar. The lady is presently
in the Foreign service of this country and outside the country.
allocatur was dated on the 8th day of December 2000 as shown by two
documents separately attached to the proceedings. See annexures "C"
and "D" The claim further prays for interim relief which
seeks to stay the execution of the Warrant of Execution pending the
outcome of this application.
no prayer for setting aside the Taxing Master's allocatur. The reason
put forward by Mr. Kulundu for Applicants was that the decision of
the Bill of Costs would only be reviewable in terms of the Rule 49 of
the High Court Rules. And that Rule 49 did not apply here because any
taxation if done was
irregularly, as the Applicants substantially submitted. The present
was a situation where the whole taxation process was being questioned
as against when the items are "part of any item" in the
bill were disputed where the Taxing Master had commenced the process.
See Rule 49(1)
ventured to suggest whether if the prayers in the notice of motion
were granted this Court would be entitled to allow removal or
expunction of the Taxing Master allocatur under prayer 4 "Further
and or alternative relief." It will be clear later why the
question would be pertinent in proper circumstances.
explained that a proper motion where "respondents and or their
attorneys of record did not and have not caused a Notice of Taxation
of the Bill of Costs to be served upon ourselves or our attorneys of
record. "(See para 6 of Matamo Manyeli - President of Applicant)
- would have been to apply under Rule 50 for review where the taxing
master could have made any mistake with regard to his power under
Rule 56(4). I did not agree.
the policy behind the procedure in Rule 50 was to make available
before Court evidence of the proceedings being reviewed. Where
evidence is available on affidavit the Court might well dispense with
the strict requirement of the rule. Even the prayers may not even use
the word "review"
as the decision of the tribunal or official is sought to be set aside
It does not matter whether one calls the prayers certiorari,
prohibition (interdict) or mandamus, as long as one is able to have,
as a basis of the claim, a complaint as to illegality, irrationality
and/or procedural impropriety.
further added that if Applicants insisted that they are entitled to
have the Taxing Master's allocatur invalidated under further and
alternative relief that has not been supported by any facts setting
out the basis of the relief except that the Applicants sought to do
that in their reply. I would not have agreed in the circumstances of
this case. In any event this was not consistent with what Mr. Buys
later submitted in his Heads of Argument that "A just and
expeditious decision in this regard may be an order that the bills be
served and be taxed again" as one of the orders permissible.
gravamen of this issue in the Applicants' reply is that subsequent
notices of set down (to that of the 12th September 2000) of the bill
of taxation "have not been received" by either party. On
the 8th December 2000 the date stamp impression of the Assistant
Registrar Mrs Khiba-Matekane was made on the original allocatur. It
became clear in my view, who did that but what had to be cleared, as
Applicants submitted, was that the Applicants had not received notice
that there would be taxation on that day of the 8th December 2000.
was made by Applicants' Counsel to the original of the notice of
taxation. The notice and bill which was all in blank had for unknown
reasons came into possession of the Applicants. This adds to the
murky surroundings and the mystery of all. This original notice is to
be contrasted with that of the taxed bill of the 8th December 2000
from page 28-39, 41-43 of the record. The original of the bill has
been blank except for the unsigned for number stamp impression
showing " Assistant Registrar of the High Court - 8th December
2000/' I was keenly awaiting that Mr. Buys would produce his own copy
of the notice of taxation or the taxed bill but he did not.
question then should have been how did it come about that the
Applicants' attorney was served with such a deficient notice. It was
blank where would there be proof that Applicants were given notice of
the date of taxation. It is because the notice which was said to have
been the proper and later one appointed the date of the 7th December
2000. This Court received no explanation why the Taxing Master's
allocatur is dated the 8th December 2000. This is against the
background that the Respondents' deponent Mr. Phillip William Hunt
the manager of the Respondents says the taxation took place on the
7th December 2000.
Applicants' Counsel then captured their essential complaint by
that since dramatically different perspectives has been presented by
the two different bills one blank and the other resulting in an
allocatur and award the latter "was shamelessly concocted"
by the Respondents' attorneys. And this "smelled of fraud."
In this trend the Applicants further state that:
"On the 26th day of January 2001 the respondents attorneys,
knowing very well that their bill of costs had not been taxed allowed
in terms of the law proceeded to issue a writ of Execution against
that it normally needed some conviction to make a statement of this
kind attributing unbecoming conduct on colleagues. But however highly
stated the Applicants' case remained as stated in paragraph 6 of the
founding affidavit that notice of Taxation or Bill of costs had not
been served or Applicants or their attorneys.
suggested that all the documents purportedly received by them could
not have been received by their attorneys offices. They maintain that
two things should show the probabilities in that direction. It is the
issue of their receipt date stamp, the signature of the person who
received the documents who the Applicants averred did not know and
lastly their address shown on the documents which they had since the
month of October 1998 changed when they moved to Lesotho Bank Tower
and later to Lenyora House.
that in none of the documents allegedly received by the Applicants
a "received" rubber stamp impression except the filing
sheet of accompanying the opposing affidavit of the 11th January
2002. It was received by K.E.M. Chambers. Significantly even the
original notice of taxation received on 29th August 2000 did not bear
that rubber stamp impression. The notice of "appearance" to
oppose received on 18/10/2001 did not. The notice of set down for a
date of hearing in terms of Rule 8(13) received on 14/03/2002 did
not. Another notice of the same kind received on 22/03/2002 did not.
The notice of taxation dated 28th November 2000 received on 30/11/00
did not. The notice of taxation received on 29/08/2000 did not.
was overwhelming and Mr. Kulundu, on this issue, had to concede to
the factual situation. I concluded that on this issue the Applicant
could not make the right impression. But there was still something
that did not seem right about the undated notice of the 20th August
2000 especially the original notice. This was more so when contrasted
with annexure "D" dated the 28th November 2000.
consider was the signature of receipt of the disputed documents. This
I decide to deal with separately from the question of the "service
at our office" which the Applicants preponderantly made issue
of. Why I would be
allude to the latter is because despite their movement of office from
Manonyane Centre to Lesotho Bank Tower and then lastly to Lenyora
House there has been consistently one similar signature except a few
occasions over that period.
however even been a concession by Respondents that in October 1998
the Applicants' Attorneys were no longer at Manonyane House.
signature of receipt by a person having the same signature was found
on lour documents received by Applicants' Attorneys. There were
documents dated 30/ll/00, 4/02/99, 10/02/99, 18/10/2001 and 26/02/99.
This included the notice of taxation of the 28th November 2000
received on 30/11/00) which ended in the allocatur of the 8th
mentioned bill of costs was received "to be taxed on 7 December
• 2000". There was however something distinctly worrisome
about this "another" notice. Considering that the
Respondents had issued and served six documents in all that was a
great number. Mr. Kulundu accepted that it was in four documents
where a similar signature acknowledged receipt of the four documents
issued by the Respondents.
Kulundu suggested that the Court could not safely reach any
conclusion that the signature which "received" the four
documents were that of
professional or member of staff. His suggestion was that the Court
could not resolve this except by calling viva voce evidence on that
point. In the absence of such evidence the Court would, as he said,
be disabled to resolve the point on affidavit. I would have agreed if
probabilities did not point to things that were inherently incredible
that would definitely sway probabilities. In my view the question of
signatures was not an overriding issue for the following reasons.
denial of the signature of receipt had been clear and pointed that
would have been something as far as requiring proof of such signature
was to be dealt with in the way suggested. To illustrate what the
real attitude of the Applicants were on the issue one needed to look
at the reply in paragraph 4 (AD para 5, 5.1 and 5.2 thereof) is
concerned. It reads thus:
"In the first place, as of the 29th August 2000, Mr. Maieane's
offices were not at Manonyane Centre. They were already at Lesotho
Bank, Kingsway, Maseru. If it is correct that the papers were served
at Manonyane Centre which is about 3 kilometres away from Lesotho
Bank Tower in the Maseru City then it is clear that the Notice of
Taxation was never served on Mr. Maieane's notice at all. There is in
fact nothing to indicate that Mr. Maieane's offices (at Manonyane
Centre for that matter) ever received the documents. Mr. Maieane's
office accept service of process by impressing it with a date stamp
as appears in the papers, especially the opposing affidavit hence and
or the first page thereof. I therefore deny the contents thereof and
put deponent to the proof thereof. In fact even the alleged address
of Mr. Maieane's offices is non-existent at Manonyane."
be clear that the aspect of denial of the signature of the receiver
was never put in issue on the dispute centering on the said on the
said signature. I therefore found it difficult to accept that the
issue of the signature could be singled out as an aspect where other
overriding circumstances had to be taken into account about the
totality of probabilities.
considered the question of the Applicant's attorneys address.
Respondents' attorney did not deny that the Applicants attorneys had
moved to three different places for offices. Mr. Buys however sought
to make the point that despite that movement they had not been notice
of the same. I thought the point was not good inasmuch as Mr. Buys
was not saying he had not been able to serve the Applicants'
Attorneys. On the contrary he was contending that he has nevertheless
able to effect service on either the staff or professionals of the
Applicants' attorneys office.
it would have been telling (as Defendants Counsel contend) that while
service is not invariably made at their respective office that
Counsel and Attorneys sometimes acknowledged receipt outside their
offices and their member of staff did the same even while out of
their offices. I thought the point about lack of notice of movement
of office would rather redound to Applicants in the circumstances of
this dispute. But there was this conflict between the Defendants'
Counsel statement and what was on affidavit.
Court observed what really cannot be inconsequential. This Court
would rightly sensed (and I did) a great amount of uneasiness and
discomfort on the Respondents Counsel on this point of service of the
notices of Taxation. It had to do with a simple thing. It is this
that all these things about the circumstances of this dispute were
deposed to by Mr. Phillip William Hart; the manager of the
Respondents. Amongst the things he deposes to (as a client) and
strangely so is that the notices were served at the offices of M.T.
Maieane, 1st Floor, No.3 Manonyane Centre. This he says when it was
clear and unchallenged that the Applicants offices were no longer at
that former address. In my mind this was crucial to probabilities.
this latter aspect made the Respondents' version so inherently
improbable that without much else that in the circumstances it was
not supportable on the facts. The anomaly is demonstrable where in a
situation where Mr Hart's evidence would be hearsay except where he
is supported. But he is not supported by Mr. Buys who would normally
(as an Attorney) be the source of his information in a dispute of
opinion, and through a robust approach to probabilities the
Applicants cannot have received notice of taxation for the 7th or the
8th December 2000.
application succeeds. Costs are awarded on the ordinary scale. I am
not convinced that despite many inexplicable things I should award
costs on a higher scale.
made is that the stay of execution is confirmed. The Writ of
Execution is set aside. The Taxing Master's allocatur of the 8th
December is set aside. The notice of taxation and bill of costs is to
be served to enable a fresh and proper taxation on a proper date.
Costs will be as ordered.
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