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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 -

1. by a
   judge of the High Court acting of his own motion or

   
   

2. 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,

1. 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