CIV/APN/172/1998 CIV/APN/12/2001

IN THE HIGH COURT OF LESOTHO

In the Matter Between:

CHIEF SECHABA LEROTHOLI TEKO 1st APPLICANT

CHIEF MABUSETSA LENKOANE 2nd APPLICANT

And

CHIEF MAINE MATHE 1st RESPONDENT

CHIEF AU MATSUBISI 2nd RESPONDENT

MINISTRY OF HOME AFFAIRS 3rd RESPONDENT

ATTORNEY GENERAL 4th RESPOPNDENT

RULING

Delivered by the Honourable Ms Acting Justice N. Majara on 28th February 2005

Applicant herein approached the court on an urgent basis for an order in the following terms:

1. Dispensing with the ordinary Rules pertaining to modes and periods of service.

2. A Rule Nisi be issued returnable on the date and time to be determined by this Honourable Court calling upon respondents to show cause (if any) why:

1

1. The operation of the typewritten order of Court dated the 27th November 2000 shall not be suspended pending final determination thereof.

2. The said order shall not be declared fraudulent and unlawful.

3. The first and second respondents shall not be ordered to pay costs on attorney and client scale, jointly and severally, the one paying the other being absolved.

4. Applicants shall not be granted further and/or alternative relief.

3. Prayers 1 and 2 (a) operate with immediate effect as interim orders.

On the 12th January 2001, applicants were granted an interim court order by His Lordship Justice Peete and the rule was made returnable on the 12th February 2001. On the return date the matter was postponed to a later date which was followed by numerous postponements until the 28th August 2001 when it was postponed sine die. On the 6th December 2004 the matter was finally placed before me. On the date of hearing Mr Thoahlane, counsel for applicants moved the court to strike out certain paragraphs from respondents opposing affidavits. Before he could argue his point, Ms Sehapi, Counsel for respondents raised an objection to the

2

effect that since respondents had raised certain points in limine, the court should allow her to have the first bite. She argued that the point that Counsel for applicants was raising goes into the merits of the case whereas respondents' points in limine were strictly points of law.

In reply, Mr Thoahlane argued that since he was the last to raise a point of law, the rules of practice dictate that he should have a go first. He added that the application to strike out should be heard before the main application otherwise the very application would be prejudiced.

Having heard arguments from both Counsel, I ruled that Mr Thoahlane should be the one to argue his point first for the following reasons; firstly, that he had raised the point last at the replying stage and on the basis of the averments which were made in the opposing affidavit by respondents. Secondly, the mere fact that Mr Thoahlane was making reference to portions in the affidavits did not make his application one on the merits. Thirdly, as per the provisions of Rule 29 of the High Court Rules, a party is allowed on good grounds to move an application to strike out before any arguments can be made on the merits. Such an application is made with regard to the pleadings. In addition, even the points that respondents had raised in limine, touched on certain averments in the

3

pleadings which made it incorrect for Ms Sehapi to argue that Mr Thoahlane's application was on the merits. Lastly, in my opinion, points in limine are not raised in a vacuum but rather on, or in reaction to averments in the pleadings.

Mr Thoahlane then proceeded to argue his point the gist of which was that the contents of paragraph 3 of the opposing affidavit deposed to by 1st respondent, Maine Mathe are unsubstantiated and irrelevant hearsay and should as such, be struck out by the court.

In reaction, Ms Sehapi argued that the portions were not hearsay because deponent averred that he was in the Motion Court at all the material times and that his lawyers never agreed that applicants should not file any opposing papers and that the matter would be settled out of court.

When considering this point, I referred to Rule 29 of the High Court Rules which makes provision for any party to apply to Court to strike out portions of the pleading, setting out the grounds upon which the application is made. In casu, applicant's case is that certain portions of paragraph 3 of the opposing affidavit are irrelevant hearsay.

4

As a general rule, hearsay evidence is not admissible in court. Various reasons have been advanced in support of this general rule. The main one is that, as per LH Hoffmann and DT Zeffert, the South African Law of Evidence pl25,

"...hearsay evidence is untrustworthy because it cannot be tested by cross-examination.... The purpose of cross-examination is to expose these deficiencies, and if the maker of the statement is not before the court, this safeguard is lost."

The rule against hearsay also applies to application proceedings. Also see my comments in Hajee Haroon Asman v His Worship the Chief Magistrate and 3 Others CIV/APN/466/2004 p 13 thereof.

Hearsay evidence has been defined as evidence given by a witness based on information received from others rather than personal knowledge. See p656 of the Concise Oxford English Dictionary.

In casu, upon reading the said portions, nowhere did I find an averment by 1st respondent that he was told anything either by his lawyer or anyone else. His assertion was that he was present at all the material times in the Motion Court and that the averments made by Mr Mosito in his supporting affidavit were not true. In my opinion, these averments by deponent do

5

not amount to hearsay. He deposed to the facts as he himself having first hand information on. The only portion where deponent averred that he had no knowledge of the alleged facts is in paragraph 3.4 of his opposing affidavit is where he stated as follows;

"Deponent knows nothing about the meeting of 29th September 2000 the date must have been minuted on the file by Mr Panyane. The meeting had nothing to do with the administrative settlement of the case."

Whether what he is saying is true or not does not per se make his averments hearsay. He is simply denying knowledge of the stated date. This being the case, what the court has before it as is contained in the pleadings, is the 1st respondent's word against that of Mr Mosito which in my opinion is a matter for evidence and not for striking out for reasons that it is unsubstantiated hearsay.

For these reasons, the application to strike out is dismissed with costs.

N. MAJARA

ACTING JUDGE

For Applicant : Mr Thoahlane

For Respondents : Ms Sehapi

6