HIGH COURT OF LESOTHO
MEDICAL, DENTAL & PHARMACY COUNCIL Applicant
KOKUTEKELAZA MUSOKE Respondent
by the Honourable Mr. Justice J.L. Kheola on the 31st day of march,
applicant moved this Court ex-parte on the 10th March, 1993 for an
interdict and obtained an order in the following terms:
Rule Nisi be issued and returnable on Che date and time to be
determined by this Honourable Court calling upon the Respondent
show cause (if any) why:-
normal forms and service provided for by the rules shall not be
dispensed with on account of urgency;
her agents or anyone practising on her behalf desist forthwith from
practising at Ha Patsa Building in Maseru as
Medical Practitioner, or anywhere in Lesotho;
Deputy Sheriff shall not be directed to close the premises and keep
the keys in his safe custody pending finalisation of the
Respondent shall not be directed to pay costs hereof in the event of
shall not be granted any further and or alternative relief.
prayers 1 (a), (b) and (c) operate with immediate effect as an
interim Court Order.
respondent has anticipated the return day which was the 23rd March,
1993. The application was argued before me on the 15th March,
and Mr. Mphalane, attorney for the respondent raised a number of
points in limine.
dealing with the points raised in limine it will be convenient to
give a full history of the dispute between the parties.
On the 24th
October, 1988 the respondent applied for registration, as a private
medical practitioner with the applicant. She was
registration as a medical practitioner in terms of section 15 (3) of
the Medical, Dental and Pharmacy Council
Order of 1970. (See Annexure
"C" to the founding affidavit).
9th December, 1988 the President of the applicant advised the
respondent in writing that her. provisional registration did
entitle her to practise privately and that she could only work for
Government (See Annexure "D").
5th January, 1989 the President of the applicant again wrote a letter
(Annexure "E") to the respondent and warned
her that she
was not allowed to engage in private practice. He further pointed out
that her name plates advertising her practice
were displayed in a
manner that contravened Order 13 of 1970. He warned her that by her
actions she was liable for disciplinary
action and legal action.
17th February, 1989 the Director General of Health Services warned
the respondent that although she had a work permit her
registration did not allow her to practice independently.
21st February, 1989the respondent wrote to the applicant indicating
that she would practise under the supervision of Dr.
until she was placed on the appropriate register.
28th and 29th March, 1989 the respondent sat for the applicant's
examinations and she failed. After she had failed
examinations the President of the applicant again gave her the usual
warning that her provisional registration would be revoked
required her to be under supervision at a-hospital.
22nd November, 1989 the Acting Director General of Health Services
wrote a letter to the Commissioner of Labour copied to
of Interior and to the applicant recommending that the respondent's
work permit should not be renewed on the following
(i) Her provisional registration did not entitle her to work
independently but in an institution;
(ii) She had graduated from an ungazetted University in terms of the
Medical, Dental and Pharmacy Order 13 of 1970; and that she
failed the applicant's basic examination.
(iii) She had also been informed that she was practising illegally in
4th July, 1990 the Registrar of the applicant wrote
to the respondent warning her as usual about her not being entitled
at all in this country.
paragraph 16 of its founding affidavit the applicant avers 'that it,
in the interest of public health and safety, has a moral
duty and an
obligation to the public to uphold the principles and ethics of the
medical profession by discouraging acts that are
contrary to the
rules governing medical practice. It is, therefore, for the reason
that the applicant has been constantly seeking
redress from various
authorities within Government. Furthermore, it has a duty to protect
members of the public from any harm that
may arise from being treated
by medical practitioners not licensed to practise.'
paragraph 18 the applicant avers that 'if the respondent is allowed
to continue in practice having failed basic provisional examinations
and with a provisional registration that has been revoked, the
applicant would not only be setting a dangerous precedent, but would
be putting lives of numerous patients attended by respondent on daily
basis in peril.'
paragraph 19 the applicant 'requests the Court to treat this matter
as urgent. It avers that respondent's continuation in practice
only undermines the applicant's statutory authority, but is likely to
cause irreparable harm,in terms of
the name of the applicant because it is answerable in the final
analysis to any acts done by persons who hold themselves
out to be
members of the Medical Profession.'
set out in some detail the events which led to the institution of
this application on ex parte basis on the grounds of urgency.
(22) (b) reads as follows:
"In any petition or affidavit filed in support of an urgent
application, the applicant shall set forth in detail the
which he avers render the application urgent and also
the reasons why he claims that he could not be afforded substantial
in a hearing in due course if the periods presented by this
Rule were followed,"
question is whether the applicant has satisfied the Rule mentioned
point raised in limine by Mr. Mphalane is that the applicant has
failed to comply with the mandatory provisions
of Rule 8
(22) of the High Court Rules 1980. He submitted that the applicant
has contravened this Rule by not outlining the circumstances
render this matter urgent. He referred to LAWSA by Joubert page 72
paragraph 137 where the learned author says:
"Applicant must in his founding affidavit set out the
circumstances upon which he relies to render the matter urgent and
the reasons why he cannot obtain substantial redress at the hearing
in due course."
further referred to the recent Court of Appeal case of Khaketla v.
Malahleha and others, C. of A. (CIV) No.18 of 1991 (unreported)
Ackermann, J.A. said:
"In my view there was no warrant for seeking or granting this
relief against appellant without any notice to her, or on an
basis. Appellant had closed the school on the 14th February, 1991 and
has on the 2nd March, 1991 been placed on terms in
writing by the
respondent's attorney to pay their salaries by the 7th March, 1991.
This appellant clearly failed to do, yet
respondent's attorney waited until the 20th March, 1992 before filing
the salaries application. An urgency which might have existed
date was solely of the latter's making."
Kikine, attorney for the applicant, submitted that to comply with
Rule 8 (22) does not require that one has to use the actual
used in the Rule itself but to state circumstances rendering the
application urgent. The body of the founding affidavit clearly
out such circumstances. She submitted further that such circumstances
are set out in paragraph 14 that respondent's continued
a criminal offence (which can only be allowed to go on at the great
expense of law and order). She submitted that
paragraphs 16 and 19
more clearly establish the urgency of the application. Applicant did
not, as alleged by respondent, fold its
hands and wait for six years.
It tried to invoke all the procedures laid out in its founding
statute in vain. With the passage
of time the urgency of the matter
can only be aggravated.
further submitted that respondent has been committing a wrong on a
continuous basis and this has been alleged throughout the
The matter was dealt with at length administratively with no positive
applicant has patiently waited for about six years before instituting
this application ex parte and on urgent basis. I do not
the submission that in the three paragraphs of the applicants's
affidavit circumstances have been set out which make
urgent. The applicant has been practising medicine in this country
for about six years and treating patients during
that long period.
There is no allegation that during that long period she actually
endangered the lives of any patients. There
is nothing to show that
she is now endangering the lives of her patients to such an extent
that the matter has become very urgent
and that the respondent must
stop practising immediately.
that the respondent's practice is a criminal offence is not a recent
development. It has been so for a number of years
but the applicant
did not regard the matter as urgent. I fail to understand what has
now made the matter so urgent that not even
notice could be given to
the respondent. In the words of Ackermann, J.A, in Khaketla's case -
supra- 'an urgency which might have
existed at that date was solely
of the letter's making.' I am of the view that the applicant
negligently allowed the respondent
to practise for a long time
contrary to the laws of this country.
applicant has not referred explicitly to any reasons why
that it could not be afforded substantial relief at the hearing in
due course. I have come to the conclusion that this
should be dismissed or the rule be discharged on this ground alone.
(Eniram (Pty) Ltd. v. New Woodholme Hotel 1967
(2) S.A. 491).
result the rule is discharged with costs.
Applicant - Mrs Kikine
Respondent - Mr. Mphalane.
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