CIV/APN/380/2001

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

THE
COMMISSIONER OF LANDS 1st Applicant

URBAN
LAND COMMITTEE - LERIBE 2nd Applicant

MINISTER
OF LOCAL GOVERNMENT 3rd Applicant

THE
ATTORNEY-GENERAL 4th Applicant

and

PETER
MAPESHOANE

Respondent

RULING

15th
April, 2005.

This was
an Application for the substitution of an affidavit. Mr Mapetla for
the Applicants in motivation of his Application indicated
that he
used the word substitution for want of a proper or better word. They
were not going to substitute anything or amend anything.
It was just
a question of correcting an obvious mistake of having caused one
deponent sign an affidavit belonging to the other.

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The
Application was very strongly objected to by the Respondent showing
that, that would amount to amending an affidavit which section
33 (1)
of the Rules would not permit.

Citing
the case of Semakaleng Khongoanyane & one v The Director of
Prisons and 3 Others CIV/APN/229/93 (unreported) by Ramodibedi
AJ (as
he then was), the Respondent pointed out that an affidavit in terms
of the Rules should never be substituted or amended.
Quoting from the
said judgment, counsel for Respondent showed that "since an
affidavit constitutes evidence, it cannot therefore
in terms of the
Rules be amended. This being precisely because in Motion Proceedings
an affidavit itself constitutes evidence and
proof of what it
contains."

The
judgment further showed that "allowing an amendment of an
affidavit would not only be improper but would literally amount
to
sanctioning of perjury." I entirely agree with what counsel for
the Respondent said in argument, but what still remains
is that each
case is to be treated on its own merits.

What
Applicants' counsel asked for was that a correction had to be made,
where on the face of it one person has by mistake signed
another
person's affidavit. The affidavits at issue were the supporting

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affidavits
to the answering affidavit.

The two
deponents being Bernice Qacha and 'Mathabang Moloi. Bernice seemed to
have signed on 'Mathabang's affidavit and vice versa.
Could this be
said to be amending an affidavit if a request is made just to correct
that obvious exchange of signatures. This clearly
was an obvious
genuine mistake which should not be interpreted to mean amending the
affidavits. This case is quite distinguishable
from the
Khongoanyane's case. Nothing new is going to be added except the
signatures, and the Respondent would not suffer any prejudice.
In
fact he has not alleged any prejudice he was going to suffer or
subjected to by correcting that obvious mistake.

The other
point that was raised by the Respondent was that the Application was
defective for non compliance with the mandatory provisions
of Rule 8
(7) and (8) read together with form J of the High Court Rules.

As
rightly pointed out by the Applicants, the Respondent's point is
silent as they have not shown in what particular respect there
has
been non-compliance so as to allow the other party to respond
issuably. But looking at the section referred to it refers to

Applications other than one brought ex parte. This Application was
brought ex parte and on urgent

4

basis,
and was addressed to the Registrar. This point also fails.

The
points of law raised by the Respondent fail but the Applicants have
indicated that they were offering costs for the day as it
was through
their negligence in confusing the pages that the other side would be
requested to reply afresh and case had to be postponed.
It would only
be fair that though the Respondents have not been successful it was
through their replying papers that the Applicants
were able to spot
their negligence. Wasted costs for the day are awarded to the
Respondent. The Respondent is free to reply afresh
after the change
of signatures would have been rectified.

1. M.
   HLAJOANE

   
   

JUDGE

For
Applicants: Mr Mapetla

For
Respondent: Mr Shale