CIV/APN/466/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:
HAJEE HAROON ASMAN APPLICANT
And
HIS WORSHIP MAGISTRATE - 1st RESPONDENT
MOLEFI MAKARA
LEBUAJOANG THEBEEAKHALE 2nd RESPONDENT
MESSENGER OF COURT 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Ms Acting Justice N. Majara on 2nd December, 2004
Applicant approached this court for urgent relief in the following terms:
That the normal rules regulating service of process be dispensed with;
Interdicting and restraining the 1st respondent from hearing contempt proceedings against the applicant
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pending the outcome of this application, both in respect of the interdict and the application for review;
Directing that all proceedings before the Magistrates Court for the District of Maseru under CC 1711/2004 between the applicant and 2nd respondent be stayed pending the outcome of this application;
That a rule nisi be issued calling upon 1st and 2nd respondents to show cause if any, why the interim order should not be made final and that they be directed to pay costs of this application in the event of they unsuccessfully opposing it, jointly and severally the one to pay the other to be absolved;
That prayers 1, 2 and 3 operate with immediate effect as an interim interdict;
Further and/or alternative relief.
On the date of hearing of the application, Mr Mahlakeng for respondent raised some points in limine which can briefly be summarised as follows;
That the application is defective, irregular and/or improperly before Court in that the affidavit filed in support thereof does not satisfy the requirements of Rule 50(2) of the High Court Rules as regard the
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grounds and the facts and the circumstances upon which the Applicant relies to have the decision or proceedings to be set aside.
That the affidavit filed in support of the application is irregular, defective and/or improper in that it does not comply with the peremptory requirements of Regulation 4 of the Oaths and Declarations Regulations, 1964 (in that the deponent therein has
failed to give neither his address nor a description of himself).
That the application for urgent relief is defective, improper and/or irregular in that the Applicant has not complied with the peremptory requirements of Rule 8(22) of the High Court Rules in that:
The Applicant has not in his affidavit set forth in detail the circumstances which he avers render the application urgent.
The Applicant has not set forth reasons why he claims that he could not be afforded substantial relief in a hearing in due course if the periods presented by the Rule were followed.
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The application is defective, improper and/or irregular in that the affidavit filed in support thereof is based on and/or is riddled
through and through with inadmissible hearsay evidence.
The application is irregular in that the Attorney-General has not been joined in these proceedings.
Mr Mahlakeng prayed that because of the above grounds, the court should dismiss the application.
In reaction to these points, Mr Buys, counsel for applicant argued that all the points in limine raised by respondents' counsel affect the 1st respondent and not the 2nd respondent and that the relief they are claiming is only in relation to the 2nd respondent.
In reply, Mr Mahlakeng submitted that applicant in casu cannot ask the court to review contempt of court proceedings by 1st respondent which have not yet taken place on the ground that the 1st respondent prejudged the issues because the court will not be able to review the irregularity on a nonexistent record. He contended that this court can only review an irregularity after 1st respondent has dealt with the contempt of court proceedings.
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I now proceed to deal with the points in limine in the order in which they were set out.
1. That the application is defective, irregular and/or improperly before Court in that the affidavit filed in support thereof does not satisfy the requirements of Rule 50 (2) as regard the grounds and the facts and the circumstances upon which the Applicant relies to have the decision or proceedings to be set aside.
Rule 50(2) of the High Court Rules provides;
"The notice of motion shall set out the decision or proceedings (my underlining) sought to be reviewed and shall be supported by affidavits setting out the grounds and the facts and the circumstances upon which the applicant relies to have the decision or proceedings set aside or corrected."
My understanding of the above rule is that when seeking a review, an applicant has to place something before the court either in the form of a finalized matter or one that is already proceeding hence the insertion of the words 'the decision or proceedings'.
In casu, applicant approached the court urgently because as he avers, 1st respondent has already prejudged the issues even before he could entertain the proceedings. I must say that I
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was a bit baffled as to how this court could be asked to review a process which has not yet taken place. Applicant filed an affidavit in which he provided grounds supporting his apprehension. Most of the averments are based on what he says he was told by his attorneys as he himself did not attend the proceedings. There are no supporting affidavits from the attorneys who purportedly heard the utterances of 1st respondent that gave rise to applicant's apprehension. This factor made it difficult for this court to determine for itself what it is exactly that 1st respondent is supposed to have said to have raised this kind of apprehension on the part of applicant i.e. prejudgment of the issues.
In paragraph 23 of his founding affidavit, applicant averred as follows;
"The Contempt Application, as I have stated, has not been, set down and I do not know when this Application will be heard. I am concerned and fear that I will not receive a proper hearing in this contempt application and that 1st Respondent has already made his mind with regard to the ruling he will make in the application. I will in these circumstances severely (sic) prejudiced and I would not have the opportunity to be heard fairly and to be granted a fair trial"
From the rest of the averments in the founding affidavit, it would appear that Applicant's apprehension is based on the fact that his attorneys told him that 1st respondent insisted
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that he was going to hear the contempt application before the main. However, nowhere did I find any averment that specifically states that the Chief Magistrate actually uttered the alleged words to wit, 'he had already made up his mind with regard to the ruling he will make'. In my opinion, this was applicant's own interpretation of the report which he stated he received from his attorneys. On the basis of this interpretation, he approached the court for review of proceedings which had not yet taken place.
In addition, in his discussion of what review proceedings are and what purpose they serve, Isaacs in Becks Theory and Principles of Pleading in Civil Actions 5th Edition
p325 states as follows;
'The term "review" is capable of three distinct meanings. These meanings are set out in the judgment of Innes CJ in Johannesburg Consolidated Investment Co v Johannesburg Town Council:
'In its first and most usual signification it denotes the process by which, apart from appeal, the proceedings of inferior courts of justice, both civil and criminal, are brought before this court in repeat (sic) of grave irregularities occurring during the course of such proceedings (my underlining)...' ".
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The learned author goes on to provide grounds upon which it is competent to bring such proceedings for review by a superior court. These are stated in the following terms:
Incompetency of the court in respect of the cause of action such as absence of jurisdiction.
Incompetency of the court in respect of the judicial officer such that he or a near relative had an interest in the cause,
Malice or corruption on the part of the judicial officer.
Gross irregularity in the proceedings. (My underlining) .
The admission of evidence which should not have been admitted or the rejection of evidence which should have been admitted.
Of all of the above grounds, it would appear that applicant in casu approached this court on the basis of the fourth one. My supposition is based on the fact that the crux of his application is that if 1st respondent goes ahead and entertains the contempt of court proceedings before the main action is disposed of, that will be irregular because neither he nor his attorneys of record had agreed to the date of hearing of the contempt of court proceedings and 1st respondent decided unilaterally that he is going to entertain these proceedings
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before the main action that factor notwithstanding and had as such, prejudged the issues.
In my opinion, this submission has no merit. I do not think that mere insistence on the part of the judicial officer to entertain one matter before another, per se is irregular. Furthermore, applicant has not put anything before this court in the form of either final or on-going proceedings on the basis of which this court could review the alleged irregularity. I therefore upheld the point as raised by respondent that the provisions of Rule 50 (2) have not been complied with.
2) The affidavit filed in support of the application is irregular, defective and/or improper in that it does not comply with the
peremptory requirements of Regulation 4 of the Oaths and Declarations Regulations, 1964.
With respect to this point, Mr Buys argued that the omission was not a fatal one and as such does not justify the dismissal of the
application.
The Regulation in its subsection (1) provides:
The form of words to be used in an affidavit which is sworn on oath shall (my underlining) be –
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address and description of the deponent) make oath and say as follows _____"
"I,______________ of______ (setting out the name,
The use of the word shall in this regulation, means that the requirements thereto are mandatory and not just enabling. It is therefore
imperative that they be followed to the letter, otherwise there is a danger of having rules and regulations governing courts procedure
serving no purpose and only being of cosmetic value only. Courts therefore have a duty to ensure that rules are followed and should
not lightly condone deviation thereof unless there are compelling circumstances to so condone. This position was also adopted by
Ramodibedi J (as he then was) in Moletsane v Moletsane CIV/APN/475/96 wherein the honourable judge quoted with approval the remarks of Schutz P in Matime and two others v Moruthoane and Another C of A (CIV) No. 4 of 1986. I therefore uphold this point.
The application for urgent relief is defective, improper and/or irregular in that the Applicant has not complied with the peremptory
requirements of Rule 8 (22).
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The Rule in its paragraph (b) provides:
"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 an hearing in due course if the periods presented by this Rule were followed."
In response to non-compliance with Rule 8 (22), Mr Buys argued that there are two decisions of the Court of Appeal which laid down the requirement that the attorney should set out the circumstances warranting that the matter be treated with urgency and that he did so in the Certificate of Urgency, therefore this point should be set aside.
Mr Mahlakeng's reaction to this submission was that the two decisions of the Court of Appeal are merely policy decisions and were not meant to relieve deponents of making out the circumstances of urgency in their affidavits as per the requirements of Rule 8(22).
I tend to agree with this submission. This is based on my understanding of the rationale behind the two decisions. In my opinion, they were not meant to do away with the requirements of the Rule but rather, were meant to enhance it. My opinion is based on the fact that in order to avoid opening
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the flood-gates of proceedings by way of motion without notice to the other party, the Court of Appeal wanted to emphasize the importance
of satisfying this requirement by placing additional requisites over and above it. It is trite law that litigants ought to set out clearly those circumstances which render their applications so urgent that they should be moved without notice. It has been stressed time and again that courts should not encourage abuse of ex parte application proceedings because the latter should only be used in those special, deserving and indeed urgent matters. See Amelia Tsekelo v Stephen Setenane, S S Majalle C of A (civ) NO.23/2002. I therefore uphold this point.
through and through with hearsay".
It was Mr Buys' contention that applicant was not guilty of hearsay in that in his founding affidavit, he clearly stated that he received a report and had been advised by his attorneys with regard to his allegations and therefore his averments were not hearsay.
It is important to define hearsay evidence. In the Concise Oxford English Dictionary p 656, hearsay evidence is
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defined as "evidence given by a witness based on information received from others rather than personal knowledge." Although this definition is not devoid of inadequacies, suffice it to say that it gives a fairly good idea of what is meant by hearsay evidence to wit, evidence of which a witness or deponent thereof has no first hand and/or personal knowledge.
A lot of authors have supplied the rationale behind why as a general rule, hearsay evidence is inadmissible. In LH Hoffmann and DT Zeffertt, The South African Law of Evidence pl25 the learned authors stated that the justification is that hearsay evidence is untrustworthy because it cannot be tested by cross- examination. They go on to explain as follows:
"It is not only that the maker of the statement might have been deliberately lying; he may simply have been mistaken owing to deficiencies in his powers of observation or memory, or he may have narrated the facts in a garbled or misleading manner."
The rule against hearsay is not limited to action proceedings. As has been stated in Isaacs (Supra) p 306, 'in application proceedings the rules of evidence are the same as in trial cases so that hearsay allegations are not, in general, permissible
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except in those cases where they would be permissible in a trial action.'
In casu, applicant gave an account of what he says he was told by his attorneys in relation to what transpired in the proceedings which he himself was absent from. There are no supporting affidavits from the said attorneys to support his averments and in my opinion the contents of his affidavit remain hearsay and can therefore not be admitted in these proceedings.
As I have already pointed out, applicant alleged that 1st respondent has by insisting to hear the contempt proceedings first, already 'prejudged issues'. In my opinion, this was applicant's own interpretation of what as he avers he was told by his attorneys what transpired in court and which as I have already said does not clearly state out what he means by this phrase. It is therefore a clear illustration of why as a general rule, hearsay evidence is admissible. On the basis of these reasons, I accordingly upheld this point also.
The application is irregular in that the Attorney General has not been joined in the proceedings.
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Mr Buys argued that the issue of non-joinder does not apply in this case because the relief sought does not concern 2nd respondent. His contention was that 1st respondent does not have to file an affidavit but only has to dispatch the file for review which in his opinion renders the issue of non-joinder irrelevant. He contended further that the relief sought is against 2nd respondent and not 1st respondent and as such, the issue of non-joinder i.e. failure to join the Attorney General in the proceedings, was irrelevant because as he stated, applicant was seeking relief from 2nd respondent.
I must say that I failed to appreciate the logic behind this particular point. This is because in my opinion, the gist of the averments in the founding affidavit of applicant is premised on 1st respondent purportedly having prejudged the issues. In addition, 1st respondent is cited in the application. Secondly, in the notice of motion, the court is being asked to restrain and interdict 1st respondent. Thirdly, he is the party against whom applicant has a complaint to wit, prejudging of issues and lastly, he is the one who is supposed to entertain the contempt application (the bone of contention herein) and not 2nd respondent.
It is therefore in my opinion, against 1st respondent that the relief is being sought and not 2nd respondent. This being the case, the Attorney General ought to have been joined in the
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proceedings in his representative capacity as is the legal requirement. Furthermore, I am not aware of any authority which states that where a public servant is a party to proceedings in his official capacity, if the relief does not affect him then the Attorney General does not have to be joined. Suffice it to say that 1st respondent does have an interest in this matter and because he has been joined, the Attorney General also ought to have been joined.
Having said this, over and above everything, applicant in casu, failed to show this court what prejudice he would suffer if he had waited for 1st respondent to hear the contempt of court proceedings and in the event that irregularities did occur as a matter of fact (not just apprehension which he failed to convincingly justify) during the hearing thereof, he could then approach this court for relief.
Lastly, I do not believe that if a judicial officer, especially of the stature of a Chief Magistrate, decides to use his discretion to hear one matter before the other, that factor per se, amounts to prejudging of issues. He could very well have his own valid reasons for so deciding and in the absence of proof of prejudice likely to be suffered as a result of such a decision, as has been the case herein, this Court will not lightly interfere with that decision.
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For the above reasons, the application is dismissed with costs.
N. MAJARA ACTING
JUDGE
For Applicant : Mr Buys
For Respondents : Mr Mahlakeng
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