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;

1

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

2

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.

3

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.

4

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".

5

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

6

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.

7

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.

8

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.

9

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

10

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

11