CIV/APN/243/90 IN THE HIGH COURT OF
In the Application of:
WILLIAM JAMES LEMENA Applicant
REGISTRAR OF THE HIGH COURT..... 1st Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
9th day of August. 1995.
The applicant herein seeks an order, against the
Respondents, framed in the following terms:
"1. Dispensing with the period of service of this
application on the grounds of its urgency,
2. That a Rule Nisi be issued calling upon the
"Respondents to show cause (if any) on a date to be determined
by this Honourable
Court why the following order should not be
(a) the 1st Respondent should not berestrained and
interdicted frominterfering with the applicant'sduties by
distributing the court processes to the applicant's
(b) the applicant should not beallowed, in the
mean time, to
proceed with his duties of uplifting the court processes
from the above Honourable Court's Registry and distributes the same
own discretion to hie assistants.
(c) the 1st Respondent should not be ordered to pay the
coots of this application.
3. That prayer 2(a) and (b) should
operate with an immediate effect as an. interim order;
4. Granting such further and/or alternative relief as
the above Honourable Court may deem fit."
The application was granted only in terms ofprayer 2
i.e. not prayers 1 and 3 of the notice of notion. The return day was
fixed as the 15th October, 1990. The Respondents intimated
to oppose confirmation of the rule. Affidavits were duly filedby
It is worth mentioning that after severalextensions
of the return day, the matter was. Finally placed before my brother
Lehohla, J. for hearing when the applicant filed a
notice of motion
in which he moved the court that the judge should recuse himself. The
notice of motion was not opposed and Lehohla,
J. accordingly recused
himself. The matter was finally placed before me for hearing.
It may likewise be mentioned, at this juncture, that in
their answering affidavits, the Respondents
intimated intention to raise, at the hearing of this
matter, certain points, in limine. That was, however,
not pursued at the commencement of the hearing of this case and I
need not deal with it now.
In as far as it is relevant, it is common cause, from
affidavits, that on 2nd October, 1986. the Chief Magistrate
in terms of the provisions of section, 12 of
the Subordinate Courts Proclamation 58 of 1938, the
applicant as messenger of the Maseru Magistrate Court subject to
certain conditions. The appointment was, on 12th November, 1986,
approved by the Registrar of the High Court who, on the same day,
also appointed the applicant' as deputy sheriff, of the High Court.
The applicant's conditions of appointment as messenger of the Maseru
Magistrate Court were to apply, mutatis mutandis, to
his appointment as deputy sheriff of the High Court. The conditions
were as follow:
" Mr. William James Lemena is hereby appointed in
terms of sec. 12 of the Subordinate Courts Proclamation 58/1938 as
of the Court for Maseru district.-
His appointment is for five (5) years subject to the,
1. That the security of M2,000 (two thousand Maluti)
lodged with the Standard Bank be not uplifted by him for this period.
The remuneration attached to the post is as set out in
Table B of the second ennexure to the Subordinate Court Rules,
said Proclamation. .
That he faithfully and efficiently execute his
duties as prescribed by the Subordinate Court Rules.
That he employe sufficient assistants and
allocates andsupervises their work to ensureefficient
service and/orexecution of processes of court.Such
assistants shall be personsof integrity and shall be subjectto
the approval of the chiefmagistrate but shall otherwiseremain
under firm control andsupervision of the said Mr.Lemena
who shall always remainvested with the power to suspendor
dismiss the said assistance(sic).
That the contract will take effect from 1st
(Signed) A.N. Matete 2/10/86 Chief Magistrate
Signed) N. Lethunva 12.11.86 Ragistrar of the
William James Lemena
is hereby appointed as deputy sheriff of the High Court
and Court of Appeal.
The conditions of appointment set out above shall,
mutatis mutandis apply to Mr. Lemena in respect of the
execution of his duties as deputy sheriff of the High Court and of
the Court of Appeal.
(Signed) N. Lethunya. 12.11.86
of the High Court."
The applicant employed, pursuant to his purported
appointment as messenger of the Maseru magistrate court and deputy
sheriff of the
High Court, five (5) persons as "Assistant Court
Messengers", whatever that means, directly responsible to him,
service of court processes issued out of the Maseru magistrate
court, the High Court and the Court of Appeal. He had since been the
sole person responsible for allocating to the "assistant court
messengers" court processes for service.
However, at a meeting held on the High Court premises,
on 31st August, 1990, the Registrar of the High Court (one Miss
told the applicant and his "assistant Court
Messengers" that she had decided to take the responsibility of
Court processes to them from then onwards. Despite
the applicant's objection to the move, the Registrar of the High
Court did herself
carry out the duty of allocating the court
processes to him and his "assistant court messengers".
On 5th September, 1990 the applicant caused a letter
(annexure WJL3) to be addressed to the Registrar of the High Court.
It was copied
to the Chief Magistrate, the Secretary of the Law
Society and the Senior Clerk of Court. In that letter, the applicant
the Registrar of the High Court
that the decision she had taken at the meeting of 31st
August, 1990 was unjust and should not, therefore, be implemented.
There was no response from the office of the Registrar of the
Court. Consequently, the applicant approached his attorney of record
who, on 14th September, 1990, addressed a letter to the
the High Court. The letter reads, in part:
"re: Complaint by Mr. W.J. Lemena:
We refer to the abovemeationed matter and we wish to
inform you that we are herein acting on behalf of Mr. Lemena, the
of the High Court as well as the Messenger . of Court
for the Magistrate Court. . . ,
Our instructions are to inform you that
the office of the Registrar has taken upon itself
to seize from Mr. Lemana powers vested in him in.
terms of his latter of appointment dated the 1st
In terms of the said letter, Mr. Lemena is the sole
appointed deputy sheriff as well as the messenger of court and his
to employ his deputies who are directly responsible to him
and to allocate to them and to supervise their work to ensure
We confirm that by taking these powers from Mr. Lemena.
is a direct contravention of the provisions of his letter of
You are further advised that Mr. Lemena as the only
appointed deputy sheriff and the messenger of court has furnished a
the High Court in terms of the rules that his security
covers his assistant, they cannot serve any processes which' are not
by Mr. Lemena to them.
Our instructions are, therefore, to inform you that you
should immediately desist from distributing processes to Mr. Lemena's
if you continue to do so
wo will be obliged to apply to the High Court for an
Sgd N. Mphalane N. Mphalane & Co."
There was no reply, from the office of the Registrar, to
the above cited letter. In the contention of the applicant, the
the Registrar was an interference with the rights conferred
upon him, in terms of his (applicant's) letter of appointment. She
therefore, be interdicted as a matter of urgency. Hence the
institution of the present proceedings for an order as aforesaid.
On behalf of the Respondents, Gugu Sello and Baholo
Lesenyeho, the Acting Deputy Registrar and the Assistant Registrar of
Court, respectively, deposed to answering affidavits in
which they denied that the applicant was appointed the sole deputy
They averred that it had come to the notice of the office of
the 1st Respondent that the applicant was, inter alia. causing
serious delays and discrimination in the service of court processes.
As proof thereof, they attached letters of complaints
offices of attorneys Du Preez, Liebetrau & Co and Harley, Morris
Due to his failure to perform faithfully, diligently and
efficiently the duties he had been appointed for, the office of the
decided, therefore, to curtail the applicant's duty to
uplift the High Court processes for service. The deponents denied the
contention that the decision of the 1st Respondent was an
interference with any rights of the applicant and that she should,
The deponents do not, in their answering affidavits,
seem to dispute that the applicant was, on 12th November, 1986,
messenger of the Maseru Magistrate Court. What they
dispute is the applicant's appointment as the sole deputy sheriff of
Court and the Court of Appeal.
It may, however, be noted that the appointment of the
applicant as messenger of the Maseru Magistrate Court, was
in terms of the provisions of S. 12 of the now
repealed Subordinate Courts Proclamation 58 of 1938 which was
the applicable law at the time. The section read:
"12, The written return of a messenger
or any person authorised to perform any of the functions of the court
shall be prima facie evidence of the matter therein
It will be readily seen that the above quoted section 12
of the Subordinate Court Proclamation 58 of 193$ dealt
with the effect of messenger's return of service and had nothing to
do with the appointment of messengers of court. Section
10 of the
Subordinate Courts Proclamation 58 of 1938 (as amended).
was the relevant section for the appointment of messengers of court.
The section read:
"10. A magistrate may, subject to the approval of
the Registrar of the High Court, appoint messengers and deputy
the court, subject to ouch conditions as to
remuneration and tenure of office as the Registrar of the High Court
The appointment of the applicant, as messenger of court,
in terms of the provisions of section 12 of the Subordinate Courts
Proclamation. supra, was a nullity and of no legal force or
effect, for the simple reason that the section did not empower the
chief magistrate to appoint
him (applicant) as such. That being so,
the applicant cannot, in my opinion, be heard to say he was lawfully
of the Maseru Magistrate Court.
It is common cause that pursuant to clause 4 of his
conditions of employment, as embodied in his purported letter of
the applicant engaged, as "assistant court
people viz. Masienyane, Matete, Kepanyane, Kotele,
Nqosa, Peleha and Malefane. It is to be noted, however, that the
above cited section
10 of the Subordinate Courts Proclamation 58 of
1938. which was the law applicable at the time, made no provision for
of "assistant court messengers" or deputy
messengers by the applicant who was admittedly not a magistrate. What
provided was the appointment (with the approval of the
Registrar of the High Court) of messengers and deputy messengers of
by a magistrate. The engagement, by the applicant, of the
five (5) people as "assistant court messengere", was,
in conflict with the provisions of the relevant law,
namely section 10 of the Subordinate Courts Proclamation 58 of
1938. It could not, for that reason, be valid.
Although, in their answering affidavits, the deputy
Registrar and the assistant Registrar of the High Court denied that
he was appointed
the deputy sheriff of the High Court and the Court
of Appeal, proper reading of his letter of appointment leaves no
doubt, in my
mind, that, on 12th November, 1986, the applicant was so
appointed by the Registrar of the High Court. The salient question
arises for the determination of the court is, however, whether
or not the Registrar of the High Court was empowered to
appoint, as she did, the applicant as the deputy
It ie significant to note, in this regard, that rule 2
of the Rules of the High Court of Basutoland. prescribed by
the High Commissioner's Notice 8 of 1941 provided, in part:
"2 "sheriff" shall mean
Registrar of the High Court, and shall be deemed to
include such Deputy Sheriff or Deputy Sheriffs as he may from time to
The Registrar, as the sheriff of the High Court, was,
therefore, empowered, in terms of the provisions of the above cited
appoint Deputy Sheriffs. The Rules of the High Court of
Basutoland prescribed by the High Commissioner' a Notice 8 of
1943, were, however, repealed and replaced by the High,
Court Rules. 1960 of which rule 1(1) provided, in part:
"1(1) ...."registrar" shall mean the
Registrar appointed in terms of the High Court Act of 1978 and shall
assistant registrar duly appointed as such.
"sheriff shall mean
the person dulyappointed as such and
shall include any
deputy sheriff duly
assistants to the
sheriff or deputy sheriffs."
It is to be noted that although they provided how the
Registrar and the Assistant Registrar of the High Court were
High Court Rules. 1980 made no provision as to
how or by whom the Deputy Sheriffs were to be appointed. The rules
merely defined the term "sheriff.
They did not empower him to
appoint his deputies and/or assistants. Consequently, the High Court
Rules. 1980 were amended, in terms of the provisions of section 2
of the Legal Notice Number 32 of 1982. by deleting, in
rule 1(1) thereof, the definition of the term "sheriff and
substituting the following:
""sheriff" mean& the Registrar of the
High Court, Deputy Sheriff(s) and assistant Deputy sheriff(s)."
The above cited rule 1(1) of the High Court Rules
1980 (as amended) again merely defines the term "sheriff as
meaning the Registrar of the High Court, Deputy Sheriff(s) and
Deputy Sheriff(s). Unlike rule 2 of the now repealed Rules
of the High Court of Basutolaad prescribed by the High
Commissioner's Notice 8 of 1941 it does not empower the
Registrar, or the Sheriff of the High Court, to appoint Deputy
Sheriff(s). I am not aware of any other law
that empowers the
Registrar, or the sheriff
of the High Court, to appoint another person as deputy
sheriff. Nor have I been referred to any such law.
In the circumstances, it can only be assumed chat when,
on 12th November, 1986, she appointed the applicant as Deputy
Registrar of the High Court was relying on the
provisions of rule 2 of the Rules of the High. Court of Basutoland
prescribed by the High Commissioner's Notice 8 of 1941. That
law had, however, been repealed in 1980 and was, therefore, no longer
applicable in 1986. The Registrar of the High
Court could not, in my
view, properly rely on a non-existent law for the appointment of the
applicant as deputy sheriff. The question
I have earlier posted viz.
whether or not the Registrar of the High Court was empowered to
appoint, as she did, the applicant as
Deputy Sheriff must, therefore,
be answered in the negative.
In the premises, I come to the conclusion that this
application ought not to succeed. It is dismissed and the rule
discharged. In the discretion of the court, the parties
will bear their own coats.
The Registrar of the High Court is to bring this
judgment to the attention of the Hon. the Chief Justice as a matter
JUDGE. 9th August, 1995.
For Applicant: Mr. Matooane For Respondent: Mr.
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