IN THE HIGH COURT OF LESOTHO In the
Application of :
JOSEPH SHALE Applicant
SOLICITOR GENERAL Respondent JUDGMENT
Delivered by the Hon. Justice F.X. Rooney on the 16th
day of February, 1981 .
Mr. K. Sello for the Applicant Mr. V. Tsotsi for the
This is an unusual application. The applicant was
employed from November 1957 until the 27th February, 1979 as a member
of the Lesotho
Mounted Police. In August 1977 he was convicted of
the crime of attempted murder and sentenced to 18 months
imprisonment. He attaches
to his founding affidavit a letter from
the Permanent Secretary Cabinet (Personnel) which reads as follows .
"REF.NO.CAB/P/7266-37 June 19, 1979.
Mr. Joseph Shale P.O. Box 90,
I am referring to your letter of June 13th, 1979 on the
question of your removal from office by way of dismissal.
The effective date of your dismissalshall be the
24th of February, 1978, whichwas the date your appeal was
dismissed bythe High Court and the sentence of eighteen(18)
months imprisonment confirmed.
You have been removed from office by wayof
dismissal following your conviction ona criminal offence, under
Part 6, Rule6-01 (1) paragraph (a) of the PublicService
Commission Rules 1970.
Yours faithfully, "
In his notice of motion he prays for an order in
the following terms :
"(1) directing the Respondent to supply
Applicant with the information requested for and
outlined in paragraph (a) to (j) inclusive of paragraph 6 of
within such time as the above Honourable Court
may order failing compliance therewith
an order declaring the Applicant'sdismissal
an order directing Respondent tore-instate
applicant in his previousposition of employment with
allbenefits Applicant is lawfullyentitled to;
an order directing Respondent to payall Applicant's
arrear salary calculatedfrom the 26th February, 1979 to date
(ii) Costs of this Application; (iii) Further and/or
Before considering the nature of the information
which the applicant seeks to obtain by these
proceedings, I feel obliged to make the comment that it was
presumptuous of the applicant
to assume that if this Court granted
him the order in terms of the first paragraph cited above and the
respondent neglected or refused
to comply therewith, this Court would
automatically grant him the relief claimed in paragraphs (a) (b) and
I now set out paragraph 6 of the applicant's affidavit :
" I, through my attorneys, demanded that the
Respondent provide evidence that my removal from office was carried
out in accordance
with the provisions of the law. In particular I
demanded that I be provided with the following information.
A copy of the head of the department'sproposal, if
any, in terms of the saidRule 6;
A copy of the reference of such proposalto the
Public Service Commission;
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If the proposal does not include informationin
support thereof and an application fordirections concerning the
procedure to beapplied, then copies of these are required.
A copy of the direction from the PublicService
Commission with regard to theprocedure to be applied.
Evidence of the application of such procedure.
A copy of the report, if any, to the SeniorPermanent
Secretary of the result of the
application of such procedure.
(g) A copy of any document, if any, referringsuch
result to the Commission.
(h) A record of the proceedings of the Commission under
directions given under paragraph 6(2) of the Public Service
(1) A copy of the Commission's advice to the Minister.
(o) A copy of the Minister's order pursuant to the
The application is opposed on two grounds namely:-
1 . That the Rules of this Court do not provide for the
discovery of documents before the commencement of an action and
2. The documents requested are privileged from
disclosure on the grounds of public policy and the
The High Court Rules which were extant at the time this
application was filed (Rule 28) provided that it shall be lawful for
or a Judge at any time during the pendancy of any action or
proceeding to order the production by any party thereto, on their
of such of the documents in his possession or power relating to
any matter in question in such action or proceeding as the Court
Judge shall think right. Similarily it provided in Rule 34 (1) of
the current Rules of High Court that any party to an action
notice in writing, require any other party thereto to make discovery
on oath within 21 days, of all documents relating to
any matter in
question in such action, which arc or have at anytime been in the
possession or control of such other party. It is
further provided by
sub Rule(2) that such notice shall not be given before the close of
the pleadings unless leave of a Judge has
first been obtained.
4/ In the
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In the present instance there are no proceedings pending
between the applicant and the respondent. The applicant's case is
him to be able to establish whether or not his dismissal
from office was lawful, it is imperative for him to be supplied with
information required. He claims to be reasonably apprehensive
that his dismissal has not been carried out with due regard to the
provision of the law.
A very similar case to this was Priday v Thos Cook &
Son (SA) Ltd 1952 (4) SA 761 which came before Van Winsen J. (as he
was) in the Cape Provincial Division. The learned Judge
remarked at 763
"In the present case there is no pending action or
proceeding. Indeed the applicant's problem is that until he has made
of all the books and documents in question he does not
even know whether he has a claim against the respondent Company. An
may reveal that he has no claim at all."
The learned Judge having remarked that he had not been
referred to or found any case in which a Court granted of relief of
sought by the applicant went on
" I have, after references to such writers as
van den Linden Judicieele Practijcq, Merula Manier van
Procederen; Gail Observationum, been unable to discover in our
Law any foundation for an order of the nature sought by the
applicant. It appears that the Civil Law recognised an actio ad
which was available to a person who sought to claim the
production of property which he claimed to own or have an interest
D. 10, tit.4. This is a right which still prevails to this
day but it does not assist the applicant because he neither owns not
has an interest in the documents or books he seeks to have produced.
The Civil Law (D.11 tit.1) also had a system of interrogatories
whereby a person could be compelled to make a statement under oath as
to the content of documents in his possession but such
appear to have been in connection with pending
proceedings. Even ±n Justinian's day, However, they had fallen into
Voet ad Dig. 11.1.4, states that they did not obtain in
Holland. There the Judge was apparently permitted to issue
in matters subject to litigation "ubicumque
judicem aequitas moverit". I was, however, unable to find any
the proposition -that one person is entitled to obtain
the production for inspection of the books and documents of
and in which he has no proprietary
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interest, in circumstances where litigation is neither
pending between such persons nor even certain to eventuate.
On the other hand there are decisions in our Courts
which tend to show that it is not the policy of our Courts to
encourage a person
to search amongst the books and documents of
another in order to find out whether or not he has an action against
such other. Thus
for instance in Rogers v. Sanitary Board of
Johannesburg,1 O.R. 65, the Court refused to grant an application for
"to obtain evidence for the purpose of seeing if he
(applicant) really has a case and not with the object of using the
in an action already begun".
An application to hand over for inspection a letter
alleged to contain defamatory statements concerning the applicant so
as to enable
the applicant to institute an action for damages against
the respondent was refused, the Court holding that there was nothing
show that there had been a libel committed against the applicant.
Attwell & Co. v. van de Ven and Another, 1875 B. 93. So also
Dabuku v. Mann, 9 N.L.R. 253,the Court refused to allow the applicant
inspection of books and documents in order to ascertain
whether or not he had an action against the respondent. The same
was adopted by the Court in Spies v. Vorster, 31 N.L.R. 205
at p. 215. See too Upington v. Saul Solomon & Co., 1879 B.204.
In the case of Messina Bros., Coles & Searle v. Hansen &
Schrader Ltd., 1911 C.P.D. 781, the applicants sought inspection
documents, so much in order to enable them to decide whether to claim
but in order to estimate the amount of their claim. The
however, held that as an action had not yet been instituted the
applicant could not bring himself within the Rules and so
inspection, and there was no other basis upon which he could be
accorded an inspection of the documents."
Another case in which it was held that a person is not
entitled to obtain production for inspection of the books and
another in which he has no proprietary interest in
circumstances where litigation is neither pending between such
persons nor even
certain to eventuate is the case of Rutland v.
Attorney-General 1956 (3) SA 179).
Nothing more need be said and it is not necessary for me
to consider the claim of state privilege raised by the respondent. As
applicant is not entitled to the order
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sought, this motion is dismissed with costs to the
JUDGE 16th Feruary, 1981.
Attorneys for the Applicant : Mohaleroe Sello & Co.
Attorneys for the Respondent : The Law Office.
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