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CIV/T/74/92
IN THE HIGH COURT OF LESOTHO
In the Matter of:
MOTHAE THAANE Plaintiff
and
THEKO MASOBENG Defendant
Delivered by the Hon.Mr. Justice B.K Molai on the 15th day of May 1992
On 1st February, 1992, Plaintiff herein filed with the Registrar of the High Court provisional sentence summons in which he claimed, inter alia, M5,000, together with interest thereon, against the Defendant.
The claim was based upon two cheques bearing dates 29th November, 1990 and 29th December, 1990 drawn and signed by defendant in favour of Plaintiff which cheques were, however, dishonoured upon presentation at the Lesotho Bank for payment. On 17th February, 1992, the Provisional Sentence summons was duly served upon the Defendant who filed notice of appearance
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to defend and notice of objection on 27th February, 1992 and 25th March, 1992, respectively.
The grounds of objection were that Plaintiff's claim fell within the jurisdiction of magistrate courts and could not, therefore, be properly entertained by the High Court.
On 30th March, 1992, I was presiding over the motion roll when I noticed that besides the present action there were several other actions, e.g. CIV/T/110/92 and CIV/T/65/92, in which Plaintiffs had instituted, before the High Court, Provisional Sentence summonses involving small amounts of less than Ml, 000. That was, in my view, prejudicial to the defendants who would, at the end of the day, have to pay costs on a higher scale than in the magistrate courts. In order to have the benefit of argument on the propriety of instituting before the High Court, Provisional Sentence summons involving claims that fell within the jurisdiction of magistrate courts I proposed that this and the other cases be postponed to 6th April, 1992.
On 6th April, 1992 it was argued on behalf of the Respondent, that Plaintiff's cause of action was M5,000 and, therefore, within the jurisdiction of the magistrate courts in terms of the provisions of S.17 of the Subordinate Courts Order 1988. S.6 of the High Court Act, 1978, clearly provided
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that:
"6. No civil cause 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 -
by a judge of the High Court acting of his own motion or
with the leave of a judge upon application made to him in chambers and after notice to the other party."
In the present case the proceedings were instituted before the High Court contrary to the provisions of S.6 of the High Court Act. 1978 It was conceded, on behalf of the Respondent, that in terms of the provisions of S. 29 (f) of the Subordinate Courts Order 1988,, the magistrate courts had no jurisdiction in matters in which provisional sentence was sought. That did not, however, mean that matters in which the cause of action was within the jurisdiction of magistrate courts could be brought to the High Court contrary to the provisions of S.6 of the High Court Act, 1978. If the cause of action were within the jurisdiction of the magistrate courts, the Plaintiff could not decide to proceed by way of provisional sentence. He had to proceed by way of an action and issue summons in the magistrate court. In support of this argument the court was referred to civil practice of magistrate's court in South Africa (6th Ed) by Jones and Buckle at p. 155 where the learned authors had this to say on
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the issue.
"Although the court has no jurisdiction to grant provisional sentence, it has jurisdiction in actions on liquid action or mortgage bonds for the recovery of an amount not exceeding £500. Such actions would have to follow the ordinary procedure laid down in the Act."
In the contention of the applicant, this being a provisional sentence matter, it is, in terms of the provisions of S.29 (f) of the Subordinate Courts Order. 1988. outside the jurisdiction of the Subordinate Courts. S.6 of the High Court Act,1978 does not, therefore, apply. The only forum before which the applicant can properly institute provisional sentence proceedings, regardless of the amount claimed is the High Court, presumably under the provisions of the High Court Act, 1978 of which S.2 (1)(a) reads:
"2(1) The High Court of Lesotho shall continue to exist and shall as heretofore, be a superior court of record and shall have,
unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law in force in Lesotho."
As proof that provisional sentence proceedings are always instituted before the High Court, the applicant referred the court to numerous decisions e.g. CIV/T/208/90 Kata v.Makhele, CIV/T/336/91 Wanda Furnishers (Pty) Ltd v. Makhothalo
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Mohapeloa, CIV/T/207/91 Wanda Furnishers (Pty) Ltd v. Thaki Phoba etc. entertained by this court notwithstanding the fact that the amounts of claim were within the jurisdiction of the Subordinate Courts - See also the cases of Silver v. Shapiro 1925 T.P.D 141 and Gillett v. Roberts 1925 T.p.D. 149 entertained by the Supreme Court of South Africa regardless of the fact that they were provisional sentence proceedings involving small claim within the jurisdiction of magistrate courts.
From the above cited decision, it seems to me that it is competent to institute provisional sentence proceedings before the superior, courts even where the claim is within the jurisdiction of the lower courts. That being so, it must be accepted that the passage that was earlier quoted from the Civil Practice of Magistrate's Courts by Jones and Buckle is no authority that where the claim falls within the jurisdiction of Subordinate Courts, Plaintiff is confined to ordinary action procedure in the magistrate courts and barred from instituting provisional sentence proceedings in the High Court. In my view, the only sensible interpretation to be drawn from the passage at p. 155 of the Civil Practice of Magistrate's Court by Jones and Buckle is that Plaintiff is in the circumstances, free to choose either the magistrate court or the High Court as forum. Where he chooses, without any special reasons, to bring provisional sentence proceedings
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before the High Court, the successful Plaintiff can always be awarded costs taxed on the scale of magistrate courts. I am not aware of special reasons why the Plaintiff had to choose to institute Provisional Sentence proceedings in the present case.
In the premises, the view that I take is that provisional sentence ought to be granted as prayed in the summons but the costs should be taxed on the scale of the magistrate courts. I accordingly order.
This order applies with equal force to CIV/T/110/92 Wanda furnishers (Pty) Ltd v. Mohlathe Mohlathe and CIV/T/65/92 Mothae Thaane v Theko Masebong
B.K. MOLAI
JUDGE
15th May, 1992.
For Plaintiff : Mr. Mahlakeng
For Defendant : Mr. Koornhof
