CIV/APN/541/2001

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THE VICE
CHANCELLOR OF N.U. L 1st APPLICANT

NATIONAL
UNIVERSITY OF LESOTHO 2nd APPLICANT

and

MATSOBANE
PUTSOA RESPONDENT

Before
the Honourable Mrs Acting Justice A.M. HIajoane on 12th Day of March.
2002

RULING ON
POINTS IN LIMINE

This is
an Application for stay of execution of the judgment of this Court in
CIV/APN/314/2001 pending the outcome of the appeal to be heard in
April this year.

Before
the main Application was argued Counsel for the Respondent raised the
following points of law in limine.

(a)(i) That the Application is irregular and improperly before Court
for non-compliance with the peremptory requirements of Rule 6(3) of

the Court of Appeal Rules - 1980. And that condonation of such non
compliance not within the purview of this Court.

(ii That Application is irregular and defective for non-compliance
with the peremptory requirements of Rule 8(8) of the High Court Rules
-1980.

Counsel
for the Respondent first outlined the Common Law position of the
effects of noting an appeal. I will not waste any time in going into
that as in our jurisdiction that Common Law position has clearly been
reversed by Statutory Promulgation.

Rule 6(1)
of the Court of Appeal Rules 1980:-

"Subject to the provisions of the sub-rules infra the noting of
an appeal does not operate as a stay of execution of the judgment
appealed from"

6(2) "The appellant may, at any time after he has noted an
appeal, apply to the judge of the High Court whose decision is
appealed from for leave to stay execution."

As
earlier shown, it is submitted on behalf of the Respondent that this
application is irregular and improperly before the Court for failure
to comply with Provisions of Rule 6(3) of the Court of Appeal Rules
1980.

Rule 6(3)

" The application referred to in sub-rule (2) herein shall (my
emphasis) be brought by notice of motion, supported by affidavit,
delivered to the respondent and filed by the Registrar not less than
seven days before the date set down for hearing the application."

As
rightly conceded the above quoted Rule is peremptory. Applicant's
counsel on the other hand concedes that through the Rule is couched
in mandatory terms, it does not necessarily mean that the High Court
cannot dispense with the rules pertaining to modes and periods of
service of applications. Rule 8(2) of Court of Appeal Rules -1980
provides that:

"The Court shall have discretion to condone any breach on the
application of the appellant."

When one
looks at the interpretation of 'Court' under section l(i) of the
Court of Appeal Rules 1980, will notice that by 'Court', is referring
to Court of Appeal Lesotho. That means, the condonation referred to
is not within the purview of this Court, but the Court of Appeal. In
dealing with such condonation under that Rule I would be usurping the
powers of the Superior Court.

I would
therefore not agree with the proposition that Rule 6 of the Court of

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Appeal
Rules 1980 applies within the High Court's sphere of operation. It is
therefore not the High Court which is better suited to deal with
applications of the nature of the one in casu under the Court of
Appeal Rules. Granted, the Court of Appeal does not have original
jurisdiction except in dealing with interlocutory matters as
envisaged by Section 11 of the Court of Appeal Rules. As shown under
Rule 6 of the Court of Appeal, where reference is made to the High
Court, the rule clearly specifies that the Judge of the High Court
may or shall....

If
condonation is granted, it will not be under the Court of Appeal
Rules but will be in terms of the provisions of the High Court Rules,
Rule 59 of High Court Rules.

Rule 8(8)
of the High Court Rules 1980 .

The
Respondent contents that the Applicant has not given the address
within 5 kilometres of the Registrar's office in terms of Rule 8(8)
of the High Court Rules. The Applicant on the other hand specifies
that the address is there in the notice of motion, and that
Respondent has shown no prejudice suffered as a result. Respondent in
fact has been able to serve his answering papers upon the Applicants
on the address given in the notice of motion, as such he has suffered
no prejudice.

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As
regards the question as to periods of service provided for by the
Rules, the Court had already granted dispensation with the ordinary
periods and modes of service.

I have
already shown that the noting of an appeal does not suspend the
operation of the judgement of this Court. Andre vs Papashane 1979 (1)
LLR at 39 is the authority for the proposition that, the general
approach of the High Court in matters of this nature, subject course
to the merits of the appeal, is governed by the principle whether the
Applicant would suffer more prejudice if the execution proceeded than
the prejudice the Respondent would suffer if the execution was
stayed. Respondent has not alleged any prejudice that he might suffer
as a result.

In our
case stay of execution would mean excluding the Respondent from his
office.

The
exclusion being for purposes of performing some audit inspection. I
would not take this exclusion as expulsion, but a temporary measure
for a certain purpose. That being the case I would dismiss the points
of law in limine that were raised and allow the application for stay
of execution pending the appeal to be heard in April, this year.

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The costs
of this application are to be costs in the appeal.

A.M.
HLAJOANE

ACTING
JUDGE

For
Applicants: Mr Mosae

For
Respondent: Mr Mahlakeng

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