CIV/APN/28/94

IN THE HIGH COURT OF LESOTHO

In the matter between:

RANTHAKO KETSO APPLICANT

and

DEPARTMENT OF MINES AND GEOLOGY 1ST RESPONDENT

ATTORNEY
GENERAL 2ND RESPONDENT

RULING

Delivered by the Honourable Mr. Justice G.N. Mofolo.
Acting Judqe. on the 21st day of July, 1995.

In this matter the applicant approached the court by way
of motion proceedinqs claiming:

(a) that the suspension by 1st Respondent of
Applicant's

diqqina licence and riqhts at Kao Diamond
Mininq be declared null and void,

(b) Applicant pay Respondent M15.000-00 (Fifteen
Thousand

Maloti) damaqes which Applicant suffered as a
result of the suspension/non-renewal of his digging licence,

(c) costs of application and

(d) further and/or alternative relief.

On 17 July, 1995 after the applicant's
counsel had addressed
court counsel for the Respondents
taking a point of law queried
that the claim before
court was improper in that there was a
serious
dispute of facts which could not be decided on affidavit
alone.

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Further that as the applicant should have appreciated
this dispute of facts and acted accordingly the application was to be
dismissed
with costs.

Counsel for the applicant criticised the way the
point of law had been taken and protested that she had been taken
by surprise
while at the same time conceding that Mr.Mapetla for
respondents was correct that damaqes could not be claimed by
motion proceedinqs.

I rule that the point of law taken by Mr. Mapetla was
properly taken and all that remains is for me to decide whether the
points raised
favour him and if so whether I should dismiss this
application with costs or make an order which may seem to the court
just and equitable
in the circumstances.

It seems to me motion proceedinqs are preferred where
issues to be decided are clear and may be resolved expeditiouslv and
without
much time and expense. As was said in Frank v.

Qhlsson's
Cape Breweries, Ltd (1924 A.D. 289) that:

it appears to be the rule that when only a question of
law is as issue motion proceedings may suffice.'

Dowlinq J. in R. Bakers (Pty) Ltd. v. Ruto Bakeries
(Pty) Ltd, 1948(2) S.A. 626 has qiven an illuminating insiqht into
the

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intricacies and power play between motion proceedings
and trial action. According to him, in motion proceedinqs a
decision is
arrived at by a process based on the preponderence of
probability on affidavits as best one can though,as he has
observed, such
a course is fraught with unreliability. That
where, however, the procedure is not by way of motion the position
is different
for where a party, instead of proceeding by way of
action, proceeds by way of motion then such a party is not
entitled
to attempt to force a decision of probabilities
arising out of affidavits.

Dowling J. protested that the indiscriminate use of
motion proceedings pro tanto is an abuse of process and tends to
inflate costs
quite apart from the fact that these proceedinqs become
fishinq expeditions' in themselves,

Notwithstandinq the above strictures Dowlinq J.
nevertheless went on in R. Bakers (Pty) Ltd, above at p.631:

'The safequard that motion proceedings may be dismissed
with costs if the applicant should have foreseen an
irresolute dispute
on fact is not itself an adequate safeguard.'

In this case the applicant appreciated or ought to
have appreciated that damages could not be decided on motion
proceedings:
he was right, however, to decide that the suspension of
his licence could be decided by motion proceedings. Mr. Mapetla
submitted,
and rightly so in my view, that what's

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important is what meets the eye. Unfortunately, it is
damages which meet the eye as incapable of resolution by motion
proceedings
but certainly not the suspension of the licence. As I
have said Ms. Kotelo's concession was also appropriate in the
circumstances
and would attribute the decision to proceed by way of
motion as having arisen from the fact that claim (b) arose naturally
from claim
(a) of the Notice of Motion and applicant must have
conceived (albeit wrongly) that if claim (a) succeeded this would go
for claim
(b).

The unenviable choice facing the applicant seems to have
been the fact that his claim was based on law and fact.

Bowling's amplification in Williams v. Tunstall (1949(3)
S.A.L.R. 835) is in point to the effect that:

'I agree however that the court's must today recognise
that in contemporary practice any dispute, save matrimonial causes
and claims
for damages, but not excluding money counts, may be
decided by motion proceedings in an appropriate case .'

In his course of judgment Murray A.J.P. in Room Hire
co. (Pty) Ltd. 1949(3) S.A. 1155 T.P.D. said:

'to the list must be added illiquid claims for damages
in which motion proceedings are not permissible at all and anything
in between
is a guestion of choice whether to proceed by way of
motion proceedings or trial action.

Murray A.J.P. in Room Hire Co. (Pty) Ltd supra at p.1162
continued:

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'It is obvious that a claimant who elects to proceed by
motion runs the risk that a dispute of fact may be shown to exist.
In that
event ( ) the court has a discretion as to the future
course of the proceedings.'

The law as enunciated appears to have taken the view
that where the court is of the view that the dispute of fact cannot
be settled
other than calling viva voce evidence the parties may be
sent to trial in the ordinary way either on affidavits as
constituting
pleadings or with a direction that pleadings are to be
filed. It was also said that the application may be dismissed with
costs
'particularly where the applicant should have realised that
when launching his application a serious dispute of facts not capable
of easy ascertainment' would arise.

Watermever C.J.'s directions in Peterson v. Cuthbert &
Co, Ltd, 1945 A.D. 420 at 428 are so instructive they cannot go
unnoticed
where he said:

'In every case the court must examine the alleged
dispute of fact and see whether in truth there is a real issue of
fact which cannot
be satisfactorily determined without the aid of
oral evidence.'

I have examined this application and I have found that
in law damages, requiring, as they do, proof in order to be
established, that
they therefore cannot be decided by motion
proceedings; this, in my view, does not go for applicant's claim
based on (a) of his Notice
of Motion which can properly be determined
by motion proceedings.

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In this application had been totally unmerited but
brought in the hope of inducing the court to apply Rule 8 to what
is essentially
the subject of an ordinary trial action' (Muray A.J.P.
in Room Hire above at p. 1162/ then I would not hesitate to dismiss
the application
with costs.

I am not satisfied that this application was brought
spaciously considering chat our own Rule 8 sub-rule (14) of the High
Court Rules
in no different in that it confers a discretion on a
court to decide as best it can to ensure 'a just and expeditious
decision where
in its opinion on application cannot be decided on
affidavit. This, quite apart, I am not inclined to throw out a baby
with the dirty
water.

Consequently my ruling is that this matter go to trial
and that all affidavits, and depositions forming subject-matter of
the application
constitute pleadings in the action.

the case is such that I have no option but to order that
costs of the application be coats in the trial.

Acting Judge
20th July , 1995