IN THE HIGH COURT
OF LESOTHO In the matter of:
v 'MASEBOTA KHUELE Respondent
Delivered by the Hon. Sir Peter Allen on the 4th day of
This is an application for stay of proceedings pending
appeal. The proceedings are between the same parties except that the
applicant is, in fact, the respondent in the original
CIV/APN/105/86 which is an action for unlawful dismissal, at present
course of being heard by me.
As a result of three objections made in limine by BEDCO
I gave a ruling on 27 May 1987 rejecting those objections and
I expected to continue with the hearing today (4 June
1987). Instead this present application has appeared. It was filed
Registry only yesterday (3 June) and it claims to be urgent.
First of all I wish to draw attention to the style of
this Notice of Motion, and many others that I have seen before me.
to be the practice here to bring Notices of Motion and other
stating on them, as a part of the heading, the exact
sections, rules or regulations under which the particular action or
is brought before the Court. Apparently most counsel
expect the Court to discover or know the relevant authority. But
just not do. I find it unacceptable. In my opinion an
application brought before the Court without stating on it under what
it is brought, particularly in reference to court rules,
is improperly before the Court because it is incomplete and
I can see no difficulty at all, as far as advocates and
attorneys are concerned, in complying with such a simple and
Indeed in many other countries the papers
would not be accepted for filing by the Registry without displaying
such authority for
This present application is apparently for a stay of
proceedings pending the outcome of an appeal from the "judgment"
this Court. There is no reference to any rule giving a right to
make such an application and, although I asked several times for
none was given.
Mr. Mahlakeng stated that he had filed a Notice of
Appeal number A/10/87 on 3 June 1987. But it is clear from S.16(1)
of the Court
of Appeal Act, 1978 that there is only a right of appeal
against "final judgments of the High Court". In the case
interlocutory order there must first be an application to the
Court of Appeal for leave to appeal.
In the present instance there has been no such
application, for leave to appeal. Mr. Mahlakeng submitted
that this was because my Ruling was in the nature of a
final judgment. But this is nonsense. If my Ruling amounted to a
then the proper application to make is for a stay of
execution. This present application is for a stay of
proceedings which, of course, means that the trial is still in
progress; which it could not be if a final judgment had been
delivered. So his
own argument contradicts his application. This is
It is surely perfectly clear that my Ruling was made on
points raised in limine i.e., preliminary points, and that as a
that Ruling, the trial was set to proceed towards an
eventual conclusion and judgment. Because of this delay that stage
has not yet
been reached. Consequently my Ruling resulted in, and
contains, an interlocutory order not a final judgment, or any other
judgment, for that matter.
Following from that, it is clear that BEDCO has no right
of automatic appeal against my Ruling. It can only apply to the
Appeal for leave to appeal. This has not been done. It has
merely lodged a premature notice of appeal which is meaningless and
can have no influence upon this Court's actions.
Furthermore, if the applicant had wanted a stay of
execution from a final judgment, it would have to have complied with
and (4) of the Court of Appeal Rules, 1980, by filing the
application "not leas than seven days before the date set down
hearing the application." This was certainly not done.
/It is ...
It is important that the Court should, wherever
possible, hear argument from both sides in any matter before it. In
my opinion far
too much use is made here of ex parte so-called urgent
As I pointed out in Court, if Mr. Mahlakeng had not been
so hasty, the substantive case could have been heard and disposed of.
if judgment went against BEDCO, and they wanted to appeal, he
could have lodged his appeal by right in the normal way. If the
was favourable to BEDCO then there would be no need for an
appeal and all the inevitable expense and delay which would be
It is simply a matter of exercising a little patience and
not "going off at half-cock," as clearly has been done in
Mr. Pheko pointed out also that, even if my earlier
Ruling had gone against his client, he could simply have amended it
or filed a
fresh application. I agree with that.
To sum up, I hold that my earlier Ruling was an
interlocutory order and that no application has been lodged for leave
to appeal against
it; and that, even if it had been, the present
applicant has not shown by what authority he can apply here for a
stay of proceedings.
Accordingly, I find this application to be
misconceived, premature and improper and it is dismissed with
The hearing in CIV/APN/105/86 is to proceed.
4th June, 1987 Mr. Mahlakeng for Applicant Mr. Pheko
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