CIV/APN/476/04

In the
matter between:

PAPASI
NKOMO & 2 ORS. APPLICANT

VS

MAGISTRATE
QUTHING & ONE 1st RESPONDENT

ATTORNEY
GENERAL 2nd RESPONDENT

JUDGEMENT

DELIVERED
BY:

THE
HONOURABLE ACTING MRS JUSTICE M. MAHASE ON THE 06/06/05

In this
case, the applicant Papasi Nkomo, and Bernard Hloi approached this
court on an urgent basis asking the court for the following
orders:-

1. Staying
   execution in CC35/00 pending the finalization of the appeal against
   the dismissal of an application for revival of a rule
   in rescission
   proceedings;

   
   

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2. Granting
   applicants costs.

   
   

In brief
the history of this case is as follows hereunder:

The
proceedings in CC 35/2000 were heard and disposed off by a magistrate
in Quthing on the 5th March 2003.

The case
was disposed off following several postponements which were
occasioned by the repeated none attendance of court by the

applicant's attorneys.

The rule
therein was discharged and judgment was therefore granted in favour
of the present respondent in this application.

Apparently,
the application filed by the then applicant that the rule which had
been discharged be revived was refused by the learned
magistrate.

Having
obtained judgment, the respondent went ahead to plough and plant the
disputed field. Respondent learned about

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the
applicant's present application after he had ploughed and planted the
field in question.

The
present application was moved exparte under circumstances which the
respondent strongly opposes.

I must
however indicate and put it on this record that although on the
papers before court, there are three applicants, only the
1st
applicant has filed the founding affidavit and he has been supported
in his allegations by the officers of his attorney, Messrs
Habasisa
and Lepau.

The other
two applicants have not done so. Neither as the 1st applicant filed
any heads of argument.

Also I do
not have any copy of the proceedings pending before the magistrate in
Quthing. Same have not been filed in court so this
court is not very
clear as to what exactly the interest of the respondent herein is.

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All which
this court had been told about on the papers before it is that the
respondent is the one who has ploughed and planted
this field. The
circumstances under which he has done so have not been explained to
this court.

What is
however very clear is that the respondent has and is strongly
opposing the application for stay of execution in CC 35/2000

(Quthing), pending finalization of the appeal against dismissal of an
application for revival of a rule in rescission proceedings,
with
costs.

The
respondent has raised some points in limine as follows :-

Firstly,
he says in paragraph 2.1 of his heads of argument, that the present
application constitutes a gross abuse of court process
in as much as
it was moved exparte, and on an urgent basis under circumstances that
did not warrant such an approach. Also that
applicant did not comply
with Rule 8 of High Court Rules.

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Secondly,
he says that the application cannot be urgent in as much as it
relates to an application for stay of execution and rescission
which
were dismissed on the 5th March, 2003.

Thirdly,
the application is clearly intended merely at delaying execution
because applicant has no prospects of success on the alleged
appeal.
The said appeal has contrary, to the provisions of Rule 52 of the
High Court Rules not been set down for hearing.

I will
address the third point first.

The
provisions of Rule 52(1) of the High Court Rules are very clear.

Rule 52
(1) (a) provides clearly that:

"Where an appeal has been noted from a judgment or order of a
subordinate court, the appellant may within four weeks after
noting
the appeal apply in writing to the Registrar for a date of hearing".

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It is a
matter of common cause that the application for stay of in CC 35/2000
was dismissed by the learned magistrate for Quthing
on the 5th March
2003.

It does
not appear anywhere in the papers before me that the applicant had
duly approached the office of the Registrar to set down
the appeal
for hearing to any date. This he should have done if indeed he is
serious about that appeal, and more specifically in
compliance with
the Rules of this court.

One
wonders whey the applicant waited from the 5th March 2003 until the
24th September 2004 to instruct his attorneys of record
to institute
the appeal proceedings. It is a period of one year six months from
March 2003 to September 2004. Surely applicant
does not display an
attitude of seriousness in this matter.

Rules of
court are designed for a specific purpose. This is to regulate
business between or among litigants as well as for the court.
If they
were not there, pleadings would take longer and

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would
never be closed. It is therefore not proper that litigants be allowed
to prolong proceedings for ever or indefinitely.

In the
circumstances of this case, it would not matter whether or not
applicant's attorneys did not in avertedly join the respondent

herein. The time when they were approached to do so was inordinately
too long after the Magistrate's Court Order was given.

I note
also with concern that the applicant has not disclosed to this court
that his application for joinder of the respondent herein,
is in
relation to a case about which the subordinate court of the
Magistrate has already given an order against him.

None
disclosure of some material which is important and strikes at the
heart of the issues herein is highly irregular in proceedings
of this
nature. It renders the application nugatory.

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The
applicant has not complied with the Rules of this Court; in
particular with Rule 8. As if that is not enough, the applicant
has
filed no certificate of urgency setting out precisely the ground of
urgency. This is a requirement under the provisions of
Rule 8 (22) ©.

The file
herein is defective in that the certificate of urgency has not been
filed. The office of the Registrar should have not
accepted it until
all proper papers had been filed.

The
Interim Court Order herein is dated the 15th October 2004, but it was
granted on the 14th October 2004. It was served upon the
respondent's
wife on the 16/10/2004. This is indeed clear from the return of
service which has been filed by one "Malase Lepau
a messenger
deputized to serve court process and working at offices of Messrs B.
Sooknanan & Associates. There is also a signature
of one
"Mathabiso Damane on the original of the Notice of Motion and
the date thereat is the 16th October 2004.

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In other
words, the Interim Court Order was served upon the respondent some
one or two days after the Interim Order was granted.
This was wrong
because the respondent had not been given any notice before that
order was obtained.

In the
case of M. Mahlakeng and 55 others V Southern Sky (Pty) Ltd and 7
others C. Of A (CIV) No. 16 of 2003, the learned Justices
of the
Court of Appeal quoted with approval a quotation in the case of the
Commander of L.D.F. and Another V Matela 1999 - 2000
LLR and LB13 and
said the following:

"To have issued an Interim Order without notice to the other
side when no basis was laid for this on the papers was a serious

error on the part of the court..........".

It would
appear that this problem keeps being repeated by counsel/lawyers
despite the existence of numerous Judgments given by this
Court and
the Court of Appeal against this sort of practice. Even the
imposition of punitive costs order on those who flout this
audi
alterean partem principle does not help. This is a matter of grave
concern.

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The
appeal which the applicant alleges to have files against the order of
the learned magistrate has long lapsed if indeed it was
ever filed.
In any case, the appeal filed that long ago against a lapsed rule is
not likely to succeed, even assuming that it has
been filed in time.
I accordingly agree with the respondent that the present application
is intended merely at delaying execution.

The
applicant has not filed a replying affidavit. Miss Mohapi, who
appeared for the applicant submitted that the learned magistrate
who
refused to revive the rule in that case before him/her erred because
she did not give sufficient reasons for her judgment.
She argues that
her client has a bona fide defence against the claim of the
plaintiff.

The
difficulty here is that the record of proceedings which the parties
are referring to, which was before a magistrate in Quthing
has not
been availed to this court, so I am not in a position to say whether
or not the learned magistrate did give

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full
reasons as to her ruling in discharging and or refusing to revive the
rule therein CC 35/2000.

Be that
as it may, this application is flawed with a lot of mistakes in
particular none observance of the court Rules as indicated
in
preceding paragraphs.

It is
highly important and urgent that all litigants and officers of this
court should develop a culture of respect and observance
of the Rules
of the court to the letter.

For the
foregoing reasons, this court has come to the conclusion that this
application must not succeed. It is accordingly dismissed
with costs
on attorney and client scale.

M. MAHASE

ACTING
JUDGE

For
Applicant : Ms. Mohapi

For
Respondent : Mr. Mohau

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