CIV/A/14/83

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

BANTU SPORTS UNION - Appellants

v BANTU FOOTBALL CLUB Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice M. P. Mofokeng on the
8th day of November, 1983

This is an appeal against the whole of the judg­ment
of the Magistrate of Mafeteng. The learned Magistrate confirmed an
interim
Rule Nisi operating against the appellant. The initial order
sought was couched in the following: why;

"1 (a) The respondent shall not be restrained from
interfering with the Applicant in any way from using football ground,
site
No. 84 Mafeteng Reserve, Mafeteng, pending the outcome of
CIV/T/134/83.

2. 
   The respondent shall not be ordered to
   pay the costs
   of this application.

   
   

3. 
   That the aforesaid Rule Nisi operate as
   immediate
   temporary interdict restraining
   the Respondent in terms of
   paragraphs
   1(a) above.

   
   

/The Rule ...

-2-

The Rule Nisi granted by the learned magistrate E. M.
Lentsoe was phrased as follows:

" IT IS ORDERED.

1. THAT a Rule Nisi be issued returnable on the
8th
day of April, 1983 at 9.30 a.m.; calling
upon the Respondent to
show cause why -

1. 
   The Respondent shall not be restrained
   from
   interfering with the Applicant in
   any way from using football
   ground site
   No.84 Mafeteng Reserve, pending the
   finalization
   of CIV/T/134/83.

   
   

2. 
   The Respondent shall not be ordered to
   pay the costs
   of this application.

   
   

2. That the aforesaid Rule Nisi operate as
immediate
temporary interdict restraining the
Respondent in terms of
paragraph 1(a) above.

The founding affidavit was made by one Mokete

Mahula who describes himself as Secretary General of the
Respondent. (A resolution to this effect is filed and signed by the
manager).
However, it is now common cause that this founding
affidavit is attested to by Mr. Khauoe, an attorney who represented
the Respondent
in the Court below. In the case of Lesotho National
Development Bank Ltd. vs Lesotho Sheepskin Products (Pty) Ltd..
1978(2) L.L.R.
336 (in the press) Isaacs, A.J. is reported as
follows:

" This affidavit is undoubtedly a vital piece of
evidence but the affidavit is sworn to before the applicant's
attorney as Commissioner
of Oaths. The applicant's attorney, in my
opinion, has an interest in the case. By law in Lesotho (Regulation
7 of Government Notice
80 of 1964)

/it is ...

-3-

it is provided that a Commissioner of Oaths

must not attest an affidavit relating to a

natter in which he has an interest. This is also

the law in South Africa and the South African

Courts have held that an affidavit attested by a

Commissioner of Oaths relating to a matter in

which he has an interest is a nullity. (CP Nochmowitz

v Bellville Liquor Licensing Board and Another,

1956(2) S.A. 228 (C)). In my view this is also

the law in Lesotho.

In Tseliso Masunvane. 1961-1962 H.C.T.L.R. 30 at 33E
Elyan, J. is recorded as follows : " .... Of course a Solicitor
who is also
a Commissioner of Oaths is not permitted to take an
affidavit from his own client

in
connection with the proceedings in which such a client is a party."
I entirely endorse these two passes as expressing the
law in
Lesotho. The learned magistrate, with respect, could not condone
this fatal irregularity. Since the founding affidavit is
a nullity
there was, therefore in my view no basis upon which even a Rule Nisi
operating as a temporary interdict could be granted
let alone be
subsequently confirmed. For that reason alone the appeal ought to be
upheld. In fairness to Counsel for the Respondents
I must state that
he has conceded this point.

There is yet another feature in this matter. It is
common cause that the Respondents paid an amount of 40% of the gross
gate takings
whenever they made use of the football grounds. They
became dissatisfied as they put it with certain arrangements, and
they stopped
payment. It is not quite clear to me why they had to
pay that percentage unless there was an agreement existing

/between ....

-4-

between the parties. There mast have been some sort of
agreement existing otherwise it does not make sense why there was
payment
and then stoppage and then an attempt at negotiations.
However, one thing is quite clear to me, the Appellants are in
possession
of a tittle deed to that piece of land now called site 84.
The possession of that document plus Form C is prima facie proof that
the said plot was allocated to them. Perhaps that is why the 40% akin
to a lease was payable to them as an acknowledgement to that
fact.
If that is so, what wrong have the Appellants committed? The
Respondents have not adhered to the terms of the use of the site
and
were thus at fault.

An interdict is a judicial process whereby a person is
ordered to refraim from doing a particular act, or is ordered to
perform a
particular act. It is a remedy of a summary and
extraordinary nature, allowed in cases where a person requires
protection against
an unlawful interference or threatened
interference, with his rights, (Toyota Marketing Company v Mahase &
Another, 1978(2) L.L.R.
416 (in the press). The essence of this
remedy is to prevent self-help. It seems to me that by stopping to
perform their part of
the agreement, the Respondent resorted to
self-help and now they are coming to seek help from the Courts to
protect them against
their own wrong doings. That is not how this
extraordinary remedy is to be used. For that reason also the appeal
ought to be upheld.

I have also considered the other grounds of appeal
lodged by the Appellant. I have not dealt with them not

/because

-5-

because they are invalid but because I thought those I
have mentioned are sufficient to dispose of this matter without
unnecessarily
overloading this Judgment. I repeat they are equally
valid.

In the result the appeal ought to be upheld with costs
and it is so ordered.

JUDGE 8^thNovember,1983

For the Appellant : Mr, Sello " " Respondent
: Mr. Khauoe