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:

1. That
   the normal rules regulating service of process be dispensed with;

   
   

2. 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;

3. 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;

   
   

4. 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;

   
   

5. That
   prayers 1, 2 and 3 operate with immediate effect as an interim
   interdict;

   
   

6. 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;

2. 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.

2. 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).

   
   

2. 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:

   
   

1. The
   Applicant has not in his affidavit set forth in detail the
   circumstances which he avers render the application urgent.

   
   

2. 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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4. 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.

   
   

4. 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:

1. Incompetency
   of the court in respect of the cause of action such as absence of
   jurisdiction.

   
   

2. Incompetency
   of the court in respect of the judicial officer such that he or a
   near relative had an interest in the cause,

   
   

3. Malice
   or corruption on the part of the judicial officer.

   
   

4. Gross
   irregularity in the proceedings. (My under­lining) .

   
   

5. 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.

2. 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.

2. 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 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.

2. 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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