IN THE HIGH COURT OF LESOTHO

In the matter between:

LESOTHO MEDICAL, DENTAL & PHARMACY COUNCIL
Applicant
and

DOMITILLA
KOKUTEKELAZA MUSOKE Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 31st day of march, 1993

The applicant moved this Court ex-parte on the 10th
March, 1993 for an interdict and obtained an order in the following
terms:

1. That Rule Nisi be issued and returnable on Che date
and time to be determined by this Honourable Court calling upon the
Respondent
to show cause (if any) why:-

1. 
   The normal forms and service
   provided for by the
   rules shall
   not be dispensed with on account
   of urgency;

   
   

2. 
   Respondent, her agents or anyone
   practising on her
   behalf desist
   forthwith from practising at Ha
   Patsa Building
   in Maseru as a

   
   

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Medical Practitioner, or anywhere in Lesotho;

3. 
   The Deputy Sheriff shall not be
   directed to close
   the premises
   and keep the keys in his safe
   custody pending
   finalisation of
   the application;

   
   

4. 
   The Respondent shall not be
   directed to pay
   costs hereof in
   the event of opposing same;

   
   

5. 
   Applicant shall not be granted
   any further and or
   alternative
   relief.

   
   

2. That prayers 1 (a), (b) and (c) operate with
immediate effect as an interim Court Order.

The respondent has anticipated the return day which was
the 23rd March, 1993. The application was argued before me on the
15th March,
1993 and Mr. Mphalane, attorney for the respondent raised
a number of points in limine.

Before 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 offered
provisional 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).

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On the 9th December, 1988 the President of the applicant
advised the respondent in writing that her. provisional registration
did
not entitle her to practise privately and that she could only
work for Government (See Annexure "D").

On the 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.

On the 17th February, 1989 the Director General of
Health Services warned the respondent that although she had a work
permit her provisional
registration did not allow her to practise

independently.

On the 21st February, 1989the respondent wrote to the
applicant indicating that she would practise under the supervision of
Dr. F.N.
Rathabaneng until she was placed on the appropriate
register.

On the 28th and 29th March, 1989 the respondent sat for
the applicant's examinations and she failed. After she had failed

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the examinations the President of the applicant again
gave her the usual warning that her provisional registration would be
revoked
because it required her to be under supervision at
a-hospital.

On the 22nd November, 1989 the Acting Director General
of Health Services wrote a letter to the Commissioner of Labour
copied to the
Ministry of Interior and to the applicant recommending
that the respondent's work permit should not be renewed on the
following grounds:

(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 had
failed the applicant's basic examination.

(iii) She had also been informed that she was
practising illegally in the country.

On the 4th July, 1990 the Registrar of the applicant
wrote

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a letter to the respondent warning her as usual about
her not being entitled to practise medicine at all in this country.

In 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.'

In 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.'

In paragraph 19 the applicant 'requests the Court to
treat this matter as urgent. It avers that respondent's continuation
in practice
not only undermines the applicant's statutory authority,
but is likely to cause irreparable harm,in terms of

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tarnishing 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.'

I have set out in some detail the events which led to
the institution of this application on ex parte basis on the grounds
of urgency.

Rule 8 (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
circumstances
which he avers render the application urgent and also
the reasons why he claims that he could not be afforded substantial
relief
in a hearing in due course if the periods presented by this
Rule were followed,"

Now the question is whether the applicant has satisfied
the Rule mentioned above.

The first point raised in limine by Mr. Mphalane is that
the applicant has failed to comply with the mandatory provisions

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of Rule 8 (22) of the High Court Rules 1980. He
submitted that the applicant has contravened this Rule by not
outlining the circumstances
which 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."

He further referred to the recent Court of Appeal case
of Khaketla v. Malahleha and others, C. of A. (CIV) No.18 of 1991

(unreported) where 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 urgent
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

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respondent's attorney waited until the 20th March, 1992
before filing the salaries application. An urgency which might have
existed
at that date was solely of the latter's making."

Mrs Kikine, attorney for the applicant, submitted that
to comply with Rule 8 (22) does not require that one has to use the
actual
words used in the Rule itself but to state circumstances
rendering the application urgent. The body of the founding affidavit
clearly
seta out such circumstances. She submitted further that such
circumstances are set out in paragraph 14 that respondent's continued
practice was 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.

She further submitted that respondent has been
committing a wrong on a continuous basis and this has been alleged
throughout the affidavit.
The matter was dealt with at length
administratively with no positive results.

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The applicant has patiently waited for about six years
before instituting this application ex parte and on urgent basis. I
do not
agree with the submission that in the three paragraphs of the
applicants's affidavit circumstances have been set out which make
this
matter 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.

The fact 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.

The applicant has not referred explicitly to any reasons
why

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it claims that it could not be afforded substantial
relief at the hearing in due course. I have come to the conclusion
that this application
should be dismissed or the rule be discharged
on this ground alone. (Eniram (Pty) Ltd. v. New Woodholme Hotel 1967
(2) S.A. 491).

In the result the rule is discharged with costs.

J.L. KHEOLA JUDGE

31st March, 1993.

For the Applicant - Mrs Kikine
For the Respondent
- Mr. Mphalane.