CIV/T/36/87 IN THE HIGH COURT OF LESOTHO
In the matter between:
WAYNE E. BIATEMAN Plaintiff
G. GOVONI IMPORTS & EXPORTS
PTY) LTD. 1st Defendant
GOVONZ IMPORTS & EXPORTS LESOTHO
(PTY) LTD and Defendant
J U D G M E N T
Delivered by the Honourable Acting Judge,Mr. Justice
M.L. Lehohla, on the 20th day of March, 1987.
The facts relating to the instant matter of application
in terms of Rule 48(3) by 2nd Defendant's attorneys fall within a
My reading of the file indicates that on 23-2-87 Kheola
A.C.J. made an order granting 2nd Defendant extension of time within
to serve and file a Notice of Appearance to defend the action
inter partes above.
On 16-3-87 an application was tabled before me in terms
of Rule 48(3) on behalf of 2nd Defendant for an order:
1. Directing Plaintiff to furnish security for 2nd
Defendant's costs in the sum Of M2000.00.
Directing that all further proceedingsin the above
matter be stayed untilthe aforesaid Order is complied with,
Payment of costs of this application.
The affidavit of Mr. Koornhof, the 2nd
Defendant's attorney, was used in support of the application.
In that affidavit, Mr. Koornhof averred that on
23rd February, 1987, he served a Notice to file security on behalf of
2nd Defendant on Plaintiff's attorney in terms
of which Plaintiff was
requested to furnish security
in the sum of M2000.00 for 2nd Defendant's costs .
by reason of the fact that Plaintiff is a peregrinus
Indeed proof of such service appears ex facie the
papers. Moreover this fact has not been denied. It is therefore taken
as conclusive and as substantiating the deponent's averment.
Deponent further said in terms of Rule 48(3) Plaintiff
is required to furnish the security within ten days of the demand and
3 further brought attention to the fact that the said period
of ten days expired on 6th March, 1987, but the Plaintiff failed to
furnish the said security.
Rule 48(3) states: "If the party from whom
security is demanded contests his liability to give security or if he
fails or refuses
to furnish security in the amount demanded or (vide
Legal Notice 12/81) the amount fixed by the Registrar within ten
days of the demand, or of the Registrar's decision, as the case
may be, the other party may apply to court on notice for an
order that such security be given and that the proceedings be stayed
until such order is complied with". (My underlinings)
Rule 48(1) entitles the party desiring security
from the other to give notice for costs/setting forth
the grounds upon which security
is claimed and the amount demanded.
Rule 40(2) gives the Registrar a final decision
to determine the amount to be given if the amount of the security
only is contested.
Regard should be had to the fact that 2nd Defendant
complied with Rule 48(1) supra and that Plaintiff
did not contest the amount in terms of Rule 48(2) supra and
that the ten days envisaged by Rule 48(3) supra expired
on 6th March, 1987, without Plaintiff complying with the demand or
raising any objection within the ten day period set out
notwithstanding the notice given to him through his attorney plus the
accompanying grounds for making of such application for
In this posture of events, it appears 2nd Defendant
was entitled to approach the Court as he did seeing that
Plaintiff let pass over in silence the ten-day period without a stir
it would appear from the affidavit he purported to file on the
very morning of the hearing of this matter i.e. 16.3.87 he already
knew of the change in his circumstances from the status of a
peregrinus to incola as long ago as 19th February, 1987; see
Plaintiff's affidavit ad para. 4.
When asked why the notice to oppose this application was
not filed within the ten-day period in order to alert the 2nd
the stand likely to be taken by Plaintiff, Mr. Addy
replied that Plaintiff was entitled to five days' notice. Needless to
say he did not point to the rule which supports his contention
did I see the relevance of his submission.
Asked why he only purported to file his papers from the
bar, he said the 12th,was a holiday and the Registrar could not
papers on the 13th following and further submitted that it
has always been the practice to submit papers from the bar.
Apart from Mr. Addy's argument failing to answer
the question why his papers were not filed within the period ending
on 6th March, 1987, his reference
to the fact that it has been a
practice to submit papers from the bar is in conflict with provisions
Circular issued by the Registrer in 1970 to but a stop
to any such practice. It was with a view to ensuring the
smooth and orderly running of the business of the Court that for
of filing papers for use in a Motion Court usually held on
Mondays such papers should be in the Registrar's files before noon of
Thursday preceding the Motion Court day. This is what has been the
practice as far as I am concerned.
The importance of filing papers timeously cannot be
over-emphasised. It, among other things, ensures . that the Court has
to read them and consider subsequent arguments based
on them with a clear mind. It also helps avoid the irregularity that
in the present papers where, because of failure to file
them in the office of the Registrar, the revenue stamps have not been
contrary to provisions of Section 11 of the Stamp Duties
Order 1972, a breach,of which carries very heavy penalties. It may be
mentioning if only in passing that a good many of instruments
coming before this Court bear revenue stamps which are not defaced.
In this regard the Registrar and staff are referred to Sect.11(6) of
the Stamps Duties Order supra.
Finally while Plaintiff had apart from the long time
that his affidavit shows he had to notify all concerned of what his
he had the crucial ten days ending on 6th March to alert
the 2nd Defendant.
I may in this regard also refer to Kheola A.C.J's
judgment in CIV/APN/22/87 WAYNE E. BATEMAN v G.
GOVONI IMPORTS & EXPORTS (PTY) LTD. and others where
the Learned Acting Chief Justice on 23rd February, 1987, found it as
a fact that the present Plaintiff is a peregrinus in spite of
his protestations to the contrary showing as appear ad para.4 of his
affidavit that four days before then he had regained
the status of an
incola of Lesotho who therefore should not be subject to the
requirement of Rule 48 of the High Court rules.
There may be some criticism that the view taken in this
matter tends to let technical forms triumph over substance but it is
that the rules of Court be observed and enforced.
In the result, 2nd Defendant's application was granted
with costs. Plaintiff was ordered to file security within 14 days
therewith proceedings in this matter will remain
M.L. LEHOHLA ACTING JUDGE 20.3.87.
For Plaintiff : Mr. Addy For Defendant 2 : Mr.
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